Introduction

After rising from the depths of eras in which the United States intended to eliminate Native Nations, 1Open this footnote Close this footnote 1 This essay uses the term “Native Nations” in an effort to more respectfully encompass the diverse realities of federally recognized Indian tribes, including Alaska Native Tribes, as well as the assertion of Native Hawaiian sovereignty. …Open this footnote Close tribal sovereignty remains ascendant. With respect to natural resources, the governance of Native Nations has expanded to more fully occupy the legal space reserved in treaties with the United States. Across the country, Native Nations have built effective and expansive technical and governmental capacity that ensures the continued vitality of those reserved rights and their oversight by tribal sovereigns. 2Open this footnote Close this footnote 2 See, for example, the Northwest Indian Fisheries Commission, https://perma.cc/‌8655-F3YY (archived May 30, 2025), and the Great Lakes Intertribal Fish and Wildlife Commission, https://perma.cc/‌ZDN2-8T94 (archived May 30, 2025). …Open this footnote Close With decades of experience and proven successes in the management, stewardship, and exercise of their rights, many Native Nations are pushing beyond traditional legal and territorial boundaries to assert their interests in protecting lands, waters, and wildlife important to them and their citizens. In doing so, many are relying on broader legal foundations than the rights reserved in treaties and pushing the United States to acknowledge and respect tribal interests in the stewardship of federal public lands and waters.

These assertions of authority and the expansion of tribal interests in lands, waters, and wildlife present new dimensions for considering the legal relationship between Native Nations and their state counterparts. Though the Supreme Court has often analyzed that relationship, it has only recently begun to consider it in the context of a meaningful and expansive presence of tribal sovereignty across a range of lands and resources. Historically, the Court largely ignored the rights and interests of Native Nations in favor of broad state authority, if not ownership, 3Open this footnote Close this footnote 3 See, e.g., Geer v. Connecticut, 161 U.S. 519, 529-30 (1896), overruled by Hughes v. Oklahoma 441 U.S. 332 (1979). …Open this footnote Close of such resources. In a series of late-1800s decisions, for example, the Court consistently rooted its analysis in notions of statehood and inherent aspects of state sovereignty, including the equal footing doctrine, 4Open this footnote Close this footnote 4 See, e.g., Gregory Ablavsky, Too Much History: Castro-Huerta and the Problem of Change in Indian Law, 2022 Sup. Ct. Rev. 293, 332 (2023) (describing 1896 as the “apex of the equal footing doctrine’s brief ascendence in Indian law”). …Open this footnote Close which were often balanced only against the interests of the federal government, without regard for Native Nations or their interests. 5Open this footnote Close this footnote 5 See, e.g., Geer, 161 U.S. at 528 (“It is also certain that the power which the colonies thus possessed passed to the States with the separation from the mother country, and remains in them at the present day, in so far as its exercise may be not incompatible with, or restrained by, the rights conveyed to the Federal government by the Constitution.”); United States v. McBratney, 104 U.S. 621, 624 (1881) (“The State of Colorado, by its admission into the Union by Congress, upon an equal footing with the original States in all respects whatever, without any such exception as had been made in the treaty with the Ute Indians and in the act establishing a territorial government, has acquired criminal jurisdiction over its own citizens and other white persons throughout the whole of the territory within its limits, including the Ute Reservation, and that reservation is no longer within the sole and exclusive jurisdiction of the United States.”). …Open this footnote Close The Court shifted gears in the early 1900s, reaffirming the vitality of off-reservation treaty reserved rights in United States v. Winans 6Open this footnote Close this footnote 6 198 U.S. 371, 381-82 (1905). …Open this footnote Close in 1905 and interpreting the creation of reservations to impliedly reserve waters necessary to fulfill the reservation’s purposes in 1908’s Winters v. United States 7Open this footnote Close this footnote 7 207 U.S. 564, 577 (1908). …Open this footnote Close But, by this time, Native Nations and their citizens were under direct assault from federal allotment and assimilation policies while state governments were growing and extending their reach. Thus, despite the promise of their potential, it would take time for Native Nations to build the governmental, technical, and resource capacity to fully implement and take advantage of the legal rights affirmed in those decisions. Now, over a century later, Native Nations are doing just that, and more.

While Native Nations press those rights, several states, perhaps encouraged by a supportive second Trump administration 8Open this footnote Close this footnote 8 Compare, e.g., Dunleavy Administration Submits Transition Report to Trump Transition HQ, State of Alaska (Dec. 16, 2024), https://perma.cc/‌4UV4-FZ7L, and Alaska Priorities for Federal Transition 4 (Dec. 16, 2024) (report submitted by Alaska’s governor to incoming Trump administration calling for a “single Executive Order, issued on the first day of President Trump’s second term” addressing issues of concern to the State of Alaska), with Exec. Order No. 14153, 90 Fed. Reg. 8346 (Jan. 20, 2025) (Executive Order issued on the first day of President Trump’s second term calling for actions consistent with Alaska’s requests), and U.S. Dep’t Interior, Sec’y Order No. 3422, Unleashing Alaska’s Extraordinary Resource Potential (Feb. 3, 2025) (Secretarial direction to implement the corresponding Executive Order). …Open this footnote Close or checking the pulse of a seemingly sympathetic Supreme Court, are also aggressively asserting their status and authority within the balance of federalism. In the context of natural resources, these legal challenges echo the late 1800s, with states relying on historical notions of original statehood and expansive state sovereignty to challenge federal authority, while largely overlooking or ignoring tribal interests. 9Open this footnote Close this footnote 9 See, e.g., Motion for Leave to File Bill of Complaint, Bill of Complaint, and Brief in Support at 31, Utah v. United States, No. 22O160 (filed Aug. 20, 2024) (challenging, as an original action, federal ownership of “unappropriated” public lands in Utah—including lands within the Bears Ears National Monument—relying in part on claims that federal public lands “deprive[ the state] of its most basic and fundamental sovereign powers, including the power to tax and the power of eminent domain”); Appellants’ Opening Brief at 1-5, 29-39, United States v. Alaska, No. 24-2251 (9th Cir. filed Apr. 10, 2024) (challenging federal authority to protect and regulate subsistence fisheries on public lands in Alaska). …Open this footnote Close Even well-established models of cooperative federalism, such as those set forth in the Clean Water Act and Clean Air Act, are subject to attack by certain states seeking to assert their own, more exclusive version of state powers. 10Open this footnote Close this footnote 10 See, e.g., Complaint and Petition for Review, Idaho v. EPA, No. 1:24-cv-0100 (D.N.D. May 28, 2024) (challenging, in a complaint joined by seven states, the EPA rule requiring state consideration of tribal reserved rights in the setting of water quality standards pursuant to the Clean Water Act). …Open this footnote Close

In the face of these or similar challenges in the future and unlike perhaps any other time in its history, the Court can now look to extensive evidence of Native Nations successfully exercising and expanding their sovereign interests to collaboratively manage off-reservation natural resources. Contrary to historical and continuing assertions of unitary state ownership or control of those resources, the bright present and promising future of Indigenous-led natural resource management is not an aberration. Instead, both doctrinally and factually, this new era offers firm ground on which the Court can continue its commitment to ensuring a collaborative framework for natural resources management, rather than recycling outdated approaches that could ignore or obscure tribal rights and interests. Therefore, while the legal issues at stake have a long history before the Court, this new era of Indigenous leadership in natural resources management presents a meaningfully different reality for considering twenty-first century conflicts between tribal interests and state authorities.

Part I of this essay looks back and, relying on Winans and Winters, illustrates the Court’s longstanding commitment to a recognition of tribally reserved rights while requiring a collaborative approach that acknowledges some state interest and authority. Part II then briefly assesses the modern era of Indigenous leadership in natural resources, reviewing the ways in which Native Nations are implementing a new framework of collaborative stewardship for lands, waters, wildlife, and other ecological systems. Finally, Part III considers how the lessons or impacts of this broader movement might be relevant in future conflicts raising questions of statehood and tribal rights.

I. Treaties, Statehood, and the Court. 

The Court has wrestled with the respective rights and authorities of Native Nations and states since its earliest decisions, and even those decisions came after decades of prior debates on similar questions. 11Open this footnote Close this footnote 11 See, e.g., Cohen’s Handbook of Federal Indian Law § 2.05[1] at 48-49 (Nell Jessup Newton & Kevin K. Washburn eds., 2024). …Open this footnote Close But starting with those decisions and most clearly elucidated in its 1832 decision in Worcester v. Georgia, the Court established a set of foundational principles that continue to guide it. 12Open this footnote Close this footnote 12 31 U.S. 515 (1832). …Open this footnote Close These include the primacy of the federal-tribal relationship over state efforts to intercede, and recognition of the importance of treaties to that relationship through rules of interpretation that preserve tribal rights and insulate their exercise from interference, whether by competing state authorities or the passage of time. Despite continuing challenges to these basic principles, the momentous events of the 1800s did not dislodge their vitality for most of the succeeding century. 13Open this footnote Close this footnote 13 See, e.g., Ablavsky, supra note 4, at 326 (“By the start of the 1880s, then, the logic of Worcester endured.”). …Open this footnote Close But in the swirl of destructive federal policies of allotment and assimilation, the Court recognized that expansive federal power enabled the unilateral abrogation of treaty promises. Shortly thereafter, the Court faced similar demands to abrogate treaties but to do so in recognition of statehood buoyed by the equal footing doctrine.

A. Balancing Tribal Rights and State Authority in Winans and Winters. 

The Court’s 1905 decision in United States v. Winans reaffirmed that treaties were to be understood as the Tribes would have understood them. Further, the Court made clear that treaties should be viewed as a grant of rights from the Tribes to the United States and a reservation of rights not granted, rather than the other way round. 14Open this footnote Close this footnote 14 198 U.S. 371, 380-81 (1905). …Open this footnote Close In so holding, the Court refused the State of Washington’s claims that its entry into the Union and status as a state necessarily defeated the reach of those reserved rights. 15Open this footnote Close this footnote 15 Id. at 382. …Open this footnote Close Still, the Court acknowledged that Washington’s sovereign interests remained, providing that, consistent with treaty language acknowledging that the rights to take fish reserved there in would be “in common with” state citizens, the state would not be unreasonably restrained in regulating the exercise of treaty-reserved rights. 16Open this footnote Close this footnote 16 Id. at 384. …Open this footnote Close That acknowledgment required significant subsequent litigation to more precisely define the respective boundaries of tribal rights and state authority, 17Open this footnote Close this footnote 17 See, e.g., Washington v. Wash. State Commercial Passenger Fishing Vessel Ass’n, 443 U.S. 658, 669-74 (1979) (describing nearly a decade of litigation over federal, state, and tribal interests in the allocation of the salmon fishery). …Open this footnote Close but the result has been nearly a half century of collaborative tribal, state, and federal management of those fishery resources. 18Open this footnote Close this footnote 18 See generally Charles Wilkinson, Treaty Justice: The Northwest Tribes, the Boldt Decision, and the Recognition of Fishing Rights 234-47 (2024) (describing the collaboration that has occurred since the Court affirmed the fishing rights and tribal sovereignty of Native Nations in Washington). …Open this footnote Close

The Court’s holding in Winans ensured that the prominent status of treaties as well as the rights reserved therein by Native Nations would remain central tenets of federal Indian law in the twentieth century. The Court’s continued commitment to those rules of law was especially critical amid contemporary federal efforts to allot reservations, assimilate individual Indians, and destroy their cultures, families, and existence. In fact, as noted in the Introduction, Winans followed a string of decisions in which the Court had marginalized treaty promises in favor of deference to state authority, a commitment to the equal footing of state sovereignty free from the recognition of tribal rights or powers, and a requirement that Congress expressly protect treaty promises when admitting states to the Union in order for those powers to continue. 19Open this footnote Close this footnote 19 See, e.g., United States v. McBratney, 104 U.S. 621, 623-24 (1881) (determining that the act admitting Colorado as a state “necessarily repeals the provisions of any prior … treaty” unless Congress expressly excepted the treaty and its promises from repeal); Draper v. United States, 164 U.S. 240, 244 (1896) (holding that “equality of statehood is the rule” even where enabling act included disclaimer over “all lands . . . owned or held by any Indian or Indian tribes”); Ward v. Race Horse, 163 U.S. 504, 515-16 (1896) (“Here the enabling act not only contains no expression of the intention of Congress to continue the burdens in question in the State, but, on the contrary, its intention not to do so is conveyed by the express terms of the act of admission.”). …Open this footnote Close Thanks in part to Winans and the Court’s return to foundational principles, this “brief ascendance” of this approach in Indian law was short-lived, 20Open this footnote Close this footnote 20 Ablavsky, supra note 4, at 332. …Open this footnote Close though the robust and exclusionary conception of statehood embedded in these decisions lingers. 21Open this footnote Close this footnote 21 See Elizabeth Hidalgo Reese, Tribal Representation and Assimilative Colonialism, 76 Stan. L. Rev. 771, 798-800 (2024) (illustrating a history of “a de-facto whiteness or assimilation-based prerequisite to statehood” that served to limit if not exclude the participation of Native Nations and their citizens in state government). …Open this footnote Close

Following Winans by just three years, the Court’s decision in United States v. Winters similarly reaffirmed fundamental Indian law principles to recognize and ensure tribal interests in water. 22Open this footnote Close this footnote 22 208 U.S. 564 (1908). …Open this footnote Close There, though the terms on which Congress had established the 1888 Fort Belknap Reservation were silent as to the Tribes’ rights to water, the Court applied the interpretive framework from Winans to determine that rights sufficient to fulfill the purposes of that reservation were impliedly reserved. 23Open this footnote Close this footnote 23 Id. at 576-77. …Open this footnote Close Just as Washington had asserted in Winans, the State of Montana urged the Winters Court to reject the continuance of any such right after Montana was admitted to the Union in 1889. Though the Court deemed this equal footing-based argument “elaborate and able,” it was instead swayed by the “extreme” effects it implied: that Congress would, within a year of establishing a reservation and thereby reserving water necessary for its purpose, “destroy[] the reservation” and “leave the[ Tribes] a barren waste.” 24Open this footnote Close this footnote 24 Id. at 577-78. …Open this footnote Close

As with Winans, however, despite the failure of Montana’s equal footing and statehood arguments, not all of the state’s interests were defeated. In the years following the decision, for example, non-Indian leasing of the Reservation significantly expanded to take advantage of its outcome. 25Open this footnote Close this footnote 25 See Judith V. Royster, Water, Legal Rights, and Actual Consequences: The Story of Winters v. United States, in Indian Law Stories 98 (Carole Goldberg, Kevin K. Washburn & Philip P. Frickey eds., 2011). …Open this footnote Close In addition, subsequent congressional action and Supreme Court decisions would generally subject the adjudication of these tribally reserved rights to state courts, thereby ensuring a continued state role in their determination and implementation. Partly as a result of these later developments, the tribal rights acknowledged and protected in Winters have yet to be finally resolved and confirmed for the Tribes’ sustained and perpetual use.

B. From Balance to Deference to State Interests: Judicial Subjectivism in the Late Twentieth Century. 

Nearly a century after its foundational decisions in Winans and Winters, the Court continued to grapple with conflicts between treaty-reserved rights and state sovereignty claims by virtue of statehood. For most of its “modern era” of Indian law jurisprudence, beginning with Williams v. Lee in 1959, the Court consistently honored precedent, deferred to Congress, and, absent congressional limitations, recognized tribal sovereignty. 26Open this footnote Close this footnote 26 358 U.S. 217 (1959); see also Charles F. Wilkinson, American Indians, Time, and the Law 1 (1982) (“On January 12, 1959, the Supreme Court decided Williams v. Lee and, in so doing, opened the modern era of federal Indian law.”). …Open this footnote Close That approach resulted in decisions recognizing and upholding treaty-reserved rights against attempts to abrogate them in a “backhanded way,” 27Open this footnote Close this footnote 27 Menominee Tribe v. United States, 391 U.S. 404, 412 (1968). …Open this footnote Close and insulating congressionally-reserved rights from state authority pursuant to the Supremacy Clause. 28Open this footnote Close this footnote 28 See Antoine v. Washington, 420 U.S. 194, 205 (1975). …Open this footnote Close

In the later decades of the 1900s, however, the Court strayed from its modern era consistency and these foundations, preferring instead to approach these challenges from a more outcome-oriented and state interests-focused perspective. 29Open this footnote Close this footnote 29 See, e.g., 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, 58-81 (1999); Philip P. Frickey, (Native) American Exceptionalism in Federal Public Law, 119 Harv. L. Rev. 431, 452-460 (2005). …Open this footnote Close Analysis by the late Dean and Professor David Getches concluded that, across decisions in all areas of law, the Court consistently demonstrated three “collective attitudes”: “disfavor[ing] the claims of racial minorities . . . protect[ing] the interests of states, and . . . promot[ing] mainstream values.” 30Open this footnote Close this footnote 30 David Getches, Beyond Indian Law: The Rehnquist Court’s Pursuit of States’ Rights, Color-Blind Justice and Mainstream Values, 86 Minn. L. Rev. 267, 317 (2001). …Open this footnote Close

This subjectivist approach had a significant impact on the Court’s approach to treaty promises and statehood, as the Court took pains to avoid faithfully interpreting treaty promises where state interests supported a different course. In deciding Montana v. United States in 1982, for example, the Court considered whether, upon statehood, the State of Montana obtained title to lands underlying the Bighorn River. 31Open this footnote Close this footnote 31 450 U.S. 544 (1982). …Open this footnote Close The river bisects the Crow Reservation, which the United States had reserved for the Crow Nation in two treaties entered into in 1851 and 1868. Despite the latter of those guaranteeing to the Crow the “absolute and undisturbed use and occupation” of those lands, the Court’s majority determined that, “[w]hatever property rights” that language created, it did not overcome the presumed transfer of the riverbed to Montana at statehood (pursuant to the equal footing doctrine). 32Open this footnote Close this footnote 32 Id. at 553-54. …Open this footnote Close Similarly, the Court determined that the allotment of the Crow reservation and the subsequent ownership of property by non-Indians within Reservation boundaries necessarily restricted those treaty-reserved rights even though the Court failed to analyze language from the allotment legislation to determine whether Congress had said the same. Nowhere in the majority’s opinion do the Court’s longstanding rules for treaty interpretation appear, a glaring error for which the dissent took the majority to task. 33Open this footnote Close this footnote 33 Id. at 569 (Blackmun, J. dissenting). …Open this footnote Close

A few years thereafter, in Oregon Department of Fish and Wildlife v. Klamath Indian Tribe, the Court once again rejected these interpretive standards in holding that rights reserved by the Klamath Tribe via an 1864 treaty did not survive subsequent congressional action to diminish the Tribe’s Reservation, even though the subsequent act was “silent with regard to hunting and fishing rights.” 34Open this footnote Close this footnote 34 473 U.S. 753, 770-71 (1985). …Open this footnote Close Notwithstanding that silence, the Court developed its own approach for considering that legislation in its “historical context,” concluding that it “clearly runs counter to [the T]ribe’s claims” to be free from state authority in the exercise of those rights. 35Open this footnote Close this footnote 35 Id. at 773. …Open this footnote Close

As these decisions demonstrate, in the years leading up to the turn of the twenty-first century, there remained consistent variability in whether a majority of the Court would rely on well-established precedent to guide their interpretation of treaty language where those rights conflicted with state interests rooted in notions of original statehood. Unlike its approach in Winans and Winters, the Court honored more binary notions of the relationship between tribal rights and statehood while favoring expansive state authority to the detriment of Native Nations. The result, as in both Montana and Klamath, left no room for shared or collaborative approaches, leaving only the state to pursue its interests in the regulation of wildlife, whether on the Crow reservation or Klamath’s traditional homelands. Consistent with its broader subjectivist tendencies, this approach also ignored and thereby precluded any efforts by Crow or Klamath to develop and expand their stewardship of those resources.

But in 1999, the Court’s decision in Minnesota v. Mille Lacs Band of Chippewa Indians provided an important bulwark against a continued slide away from the Court’s earlier commitments to doctrinal consistency with Winans and Winters. There, a five-justice majority of the Court, in an opinion authored by Justice O’Connor, reaffirmed its commitment to principles of treaty interpretation, relying on the canons of construction to uphold treaty promises while rejecting the State’s attempts to situate the case within the Court’s subjectivist precedent. 36Open this footnote Close this footnote 36 Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172, 200-02 (1999). …Open this footnote Close Further embracing this approach, the Court went on to reject Minnesota’s contention that its statehood, bolstered by the equal footing doctrine, necessarily marked the end of the treaties at issue. 37Open this footnote Close this footnote 37 Id. at 203-08. …Open this footnote Close

The State’s argument, relying on Ward v. Race Horse, an 1896 case relying on Wyoming’s statehood to abrogate tribally-reserved treaty rights, sought to resurrect and revive the pro-statehood approach of the late-1800s Court. 38Open this footnote Close this footnote 38 Ward v. Race Horse, 163 U.S. 504 (1896). …Open this footnote Close However, the Mille Lacs majority extensively revisited these ideas, concluding that Race Horse rested on the “false premise” that treaty-reserved rights and statehood could not coexist. 39Open this footnote Close this footnote 39 Mille Lacs, 526 U.S. at 204. …Open this footnote Close Chief Justice Rehnquist, writing on behalf of the Court’s four dissenters, rued the majority’s “jurisprudential legerdemain,” noting that the Court had only recently (in Klamath) relied on Race Horse and suggesting that, in the dissent’s view, the usufructuary nature of treaty-reserved rights renders them “temporary and precarious,” and, thereby subject to “eliminat[ion] by the admission of [a State] on an equal footing.” 40Open this footnote Close this footnote 40 Id. at 219-20 (Rehnquist, C.J., dissenting). …Open this footnote Close

This sharp divide among the Rehnquist Court over the relationship of treaty rights and statehood exemplified the Court’s ongoing doctrinal disagreements and reflected that Court’s broader trend toward subjectivism in resolving Indian law cases. But perhaps consistent with the tendency of the Rehnquist Court to consider the way things ought to be, the result in Mille Lacs also recognized the fruits of a long struggle, and burgeoning cooperation, between state and tribal interests in the management and oversight of fish and wildlife resources. As Dean Getches described in contextualizing such an important win for tribal interests in the midst of the dismal Rehnquist-era years, had the dissent prevailed, the decision “would have created an anomaly and disregarded the agonized history of Indian-white relations in the region that had finally produced a working relationship through a negotiated arrangement that assumed the correctness of judicial interpretations reached during eighteen years of litigation.” 41Open this footnote Close this footnote 41 Getches, supra note 30, at 351. …Open this footnote Close

Thus, Mille Lacs echoed both Winans and Winters in that the case marked a commitment by the Court to honor reserved tribal rights with respect to foundational doctrines during a dark period for Native Nations appearing before the Court. And to the extent the Court may have considered the on-the-ground efforts of the Mille Lacs Band, as well as numerous other Native Nations in the region, to meaningfully engage in effective and collaborative management strategies, Mille Lacs ensured that work would continue. In doing so, the decision set the stage for the last twenty-five years of the Court’s Indian law jurisprudence.

C. Finding its way? The Roberts Court’s Inconsistent Approach. 

In the decade following Chief Justice Roberts’ appointment in 2005, the Roberts Court continued the general trends of its predecessor, leading to a continuation, if not worsening, of the Rehnquist Court’s work in Indian law. 42Open this footnote Close this footnote 42 See 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, 1907 (2017) (updating Getches’ analysis through cases decided in 2015 and concluding that Tribal interests fared worse in the first decade of the Roberts Court than during the Rehnquist Era). …Open this footnote Close After that dismal beginning, however, new additions to the Court—Justices Sotomayor in 2009, Justice Kagan in 2010, and Justice Gorsuch in 2017—hinted at a different course guided by a more pronounced fealty to the principles of the pre-Rehnquist Court modern era. 43Open this footnote Close this footnote 43 See id. at 1911, 1915-16, 1941-42; Robert T. Anderson, Sarah A. Krakoff, Bethany Berger, American Indian Law Cases and Commentary 648 (4th ed. 2020). …Open this footnote Close However, the Court’s post-modern subjectivist tendencies remain powerful and, as evidenced by some of the Court’s most recent Indian law decisions, still carry the day despite the great weight of foundational Indian law principles counseling for a contrary approach. 44Open this footnote Close this footnote 44 See, e.g., Oklahoma v. Castro-Huerta, 142 S. Ct. 2486, 2500, 2504-05 (2022); Arizona v. Navajo Nation 143 S. Ct. 1804, 1814-16 (2023). …Open this footnote Close

Nonetheless, the Court’s treaty rights jurisprudence has generally remained consistent with the principles reaffirmed in Winters, Winans, and Mille Lacs. In two substantive decisions calling on the Court to address treaty-reserved rights and their implications for state interests and sovereignty, Herrera v. Wyoming and Washington State Department of Licensing v. Cougar Den, Inc., the Court returned to these principles to interpret treaty promises and upheld those promises in the face of state challenges. 45Open this footnote Close this footnote 45 See Herrera v. Wyoming, 139 S. Ct. 1686, 1700-02 (2019); Wash. State Dep’t of Licensing v. Cougar Den, Inc., 139 S. Ct. 1000, 1009, 1013 (2019). …Open this footnote Close In a third, Washington v. United States, the Court summarily affirmed by virtue of an even divide between eight Justices a decision of the Ninth Circuit upholding an injunction against the State of Washington to remedy its ongoing violation of treaty promises. 46Open this footnote Close this footnote 46 Washington v. United States, 138 S. Ct. 1832, 1833 (2018). …Open this footnote Close And despite more recently ruling against tribal assertions that treaty language provided a basis on which the United States was obligated to assist the Navajo Nation with its reserved water rights in Arizona v. Navajo Nation, no member of the Court questioned the substance or nature of those rights, which relied on the Winters doctrine. 47Open this footnote Close this footnote 47 See Arizona v. Navajo Nation, 143 S. Ct. 1804 (2023). …Open this footnote Close

Of these cases, the Court’s 2019 decision in Herrera v. Wyoming presented the Court with the most forthright conflict between treaty-reserved hunting rights and questions of statehood. There, the State of Wyoming sought to prosecute Mr. Herrera, a member of the Crow Tribe, for violations of state law while hunting within the Big Horn National Forest. In his defense, Mr. Herrera asserted he was exercising a right reserved by the Tribe’s 1868 Treaty to “hunt on the unoccupied lands of the United States so long as game may be found thereon, and as long as peace subsists among the whites and Indians on the borders of the hunting districts.” 48Open this footnote Close this footnote 48 Herrera, 139 S. Ct. at 1693. …Open this footnote Close As a basis for its authority to prosecute Mr. Herrera, Wyoming urged the Court to return to its late 1800s treaty rights jurisprudence, relying on Ward v. Race Horse in part to assert that those rights ended at statehood. But likely in light of Mille Lacs’ takedown of Race Horse, Wyoming acknowledged statehood did not legally abrogate the treaty right, rather, because statehood was “the moment when civilization arrived,” it was also “the logical time” when those territories to which the treaty right applied became occupied and, therefore, fell within state authority. 49Open this footnote Close this footnote 49 Brief of Respondent at 44-48, Herrera, 139 S. Ct. 1686 (No. 17-532). …Open this footnote Close

Drawing on this line of argument, the Herrera majority took the opportunity to “formalize” its views on statehood and the implied repeal of treaty rights. 50Open this footnote Close this footnote 50 Herrera, 139 S. Ct. at 1697. …Open this footnote Close The Court expressly repudiated Race Horse “to the extent that it held that treaty rights can be impliedly extinguished at statehood.” 51Open this footnote Close this footnote 51 Id. …Open this footnote Close The Court then proceeded to assess Wyoming’s claims that, “as a practical matter,” statehood marked the arrival of civilization and occupation in contravention of Mr. Herrera’s treaty-reserved rights. Relying on Mille Lacs, the Court rejected that argument as well, determining that, according to its rules for treaty interpretation, it was “not a hard case” to find the treaty rights continued. As the Court put it simply: “[t]he treaty itself define[d] the circumstances in which the right will expire. Statehood [wa]s not one of them.” 52Open this footnote Close this footnote 52 Id. at 1699-1700. …Open this footnote Close

Beyond reconfirming some doctrinal clarity and aligning the Roberts Court with both Mille Lacs and Winans and Winters, Herrera recognized and affirmed important sovereign rights of the Crow Tribe. 53Open this footnote Close this footnote 53 See, e.g., Ablavsky, supra note 4, at 337 (noting that, between Mille Lacs and Herrera, the Court “thoroughly and completely buried the equal footing doctrine argument in Indian law cases”). …Open this footnote Close As the Tribe noted in its amicus brief to the Court, relying on its sovereign powers, it enacted a resolution setting forth the Tribe’s policy for the exercise of treaty rights. 54Open this footnote Close this footnote 54 Brief of the Crow Tribe of Indians as Amicus Curiae in Support of Petitioner at 30, Herrera, 139 S. Ct. 1686 (No. 17-532). …Open this footnote Close As such, the Crow Tribe could “stand[] ready to work with the State of Wyoming, as well as other state and federal governmental entities, to determine mutually beneficial ways of regulating tribal treaty hunting, and common-sense solutions for managing elk and other game that ranges along the border between the Crow Indian Reservation and the Big Horn National Forest in Wyoming.” 55Open this footnote Close this footnote 55 Id. …Open this footnote Close Those assertions aimed to allay concerns, such as those raised during oral arguments, 56Open this footnote Close this footnote 56 See, e.g., Transcript of Oral Argument at 21-23, Herrera, 139 S. Ct. 1686 (No. 17-532). …Open this footnote Close about the practical consequences—or, put more bluntly, the potential impacts on the State of Wyoming and its non-tribal citizens 57Open this footnote Close this footnote 57 Cf. Brief for Ass’n of Fish & Wildlife Agencies as Amici Curiae Supporting Respondent at 3-12, Herrera, 139 S. Ct. 1686 (No. 17-532) (arguing that recognition of the Crow Tribe’s treaty-reserved rights “would harm state fish and wildlife conservation across the western United States”). …Open this footnote Close —if the Court were to uphold the Tribe’s rights and maintain its doctrinal consistency. Though continued challenges over such cooperation have frustrated the success of those efforts, representatives of the State of Wyoming and various Tribal governments with reserved rights there remain interested in finding such common ground. 58Open this footnote Close this footnote 58 See Mike Koshmrl, Wyoming, Tribal Impasse over Hunting Rights Persists Despite Judicial Order, WyoFile (May 24, 2024), https://perma.cc/‌9QGT-WVFA. …Open this footnote Close

The Crow Tribe’s assertion of its sovereign interests in reserved rights and expressed commitment to develop strategies for cooperatively exercising them highlight another critical consistency between Mille Lacs and Herrera. Unlike in earlier eras, the Court is now considering questions of reserved rights and statehood within the context of a rising movement of Native Nations meaningfully extending their spheres of sovereign influence beyond reservation boundaries. This movement advocates for an expanded role in the stewardship of lands, waters, wildlife, and natural systems long managed by federal and state governments to the exclusion of tribal considerations.

II. A New Era: Indigenous Leadership in Stewarding the Natural World. 

As described above, the Court has long recognized the continuing vitality and importance of reserved rights to Native Nations. Similarly, like in Mille Lacs and Herrera, the development of tribal law, exercise of tribal sovereignty, and establishment of collaborative approaches—whether among coalitions of Native Nations or between those Nations and their state and federal counterparts—has been decades in the making. In the Pacific Northwest, for example, the leadership of tribal governments in the co-management of salmon fisheries was catalyzed by judicial recognition of their reserved rights starting in the late 1960s and early 1970s; these decisions expressly called upon tribal, state, and federal partners to build and sustain such cooperative relationships. Building on those successes, efforts have expanded beyond these regions and beyond the narrow context of reserved treaty rights to involve and enable a much broader role for Native Nations in the stewardship of off reservation resources. A few examples illustrate the changing dynamics these roles have introduced.

A. Bears Ears National Monument. 

The establishment of Bears Ears National Monument (BENM) remains a watershed moment for the recognition and empowerment of tribal interests. That decision, made by President Obama in 2016, resulted from a sustained campaign on the part of an inter-tribal coalition representing numerous local Native Nations seeking to ensure protection for and a co-management interest in a broad swath of federal public lands across southern Utah. 59Open this footnote Close this footnote 59 See generally Charles Wilkinson, “At Bears Ears We Can Hear the Voices of Our Ancestors in Every Canyon and on Every Mesa Top”: The Creation of the First Native National Monument, 50 Ariz. St. L.J. 317, 323-28 (2017) (describing history and development of the tribal monument proposal). …Open this footnote Close Despite the State of Utah’s long-running opposition to—and subsequent litigation over—BENM, the designation of those lands pursuant to the federal Antiquities Act relied on and centered the tribal interests inherent in the landscape and, in deference to those interests, provided important guidance for ensuring a collaborative approach to BENM’s future management. 60Open this footnote Close this footnote 60 See id. at 327-28. …Open this footnote Close

Though State challenges to presidential authority under the Antiquities Act and the potential for further changes from President Trump’s incoming administration loom large, the commitment to co-stewardship of BENM has already produced meaningful outcomes. In 2022, the federal agencies responsible for managing BENM and the interested Native Nations reached an intergovernmental agreement to jointly take a range of actions to fulfill that commitment, including the development of a plan for managing BENM. 61Open this footnote Close this footnote 61 .Bears Ears Comm’n, Bureau of Land Mgmt., U.S. Dep’t of the Interior & Forest Serv., U.S. Dep’t of Agric., Inter-Governmental Cooperative Agreement for the Cooperative Management of the Bears Ears National Monument (2022), https://perma.cc/‌ALW5-LLND (archived Apr. 24, 2025). …Open this footnote Close In January 2025, the federal Bureau of Land Management (BLM) published a final plan, which included a first-of-its-kind “Tribal Nations Collaboration Framework,” and committed the federal agencies to a collaborative management approach consistent with that framework. 62Open this footnote Close this footnote 62 See Bureau of Land Mgmt., U.S. Dep’t Interior, Bears Ears National Monument: Approved Resource Management Plan 21 (2025), https://perma.cc/‌M9G8-LXWJ (archived Apr. 24, 2025). …Open this footnote Close As part of the review process for that plan, however, the BLM requested that the Governor of the State of Utah identify inconsistencies between the proposed federal plan and the existing land use plans and policies of the State and its subdivisions. As part of that review, the Governor criticized the BLM’s collaborative inclusion of its tribal partners as “unlawful” and requested that the plan be remanded for further analysis to eliminate the document’s reliance on Indigenous knowledge in place of the “best available science” required by State plans and policies. 63Open this footnote Close this footnote 63 See Letter from Steven H. Feldgus, Principal Deputy Assistant Sec’y, Land & Minerals Mgmt., to Spencer J. Cox, Governor of Utah (Jan. 6, 2025), https://perma.cc/‌Q8KH-H4ZH. …Open this footnote Close Though, after further consideration, the BLM rejected those concerns and approved the plan with only minor additional revisions. However, Utah’s position highlights the potential for future challenges to this innovative approach. 64Open this footnote Close this footnote 64 Separate from challenges by the State of Utah, the revised BENM management plan may also be subject to further review by the United States Secretary of the Interior pursuant to Section 3 of Executive Order 14154, Unleashing American Energy, issued by President Trump on January 20, 2025, which calls on all federal agencies to review agency actions that “impose an undue burden” on the development or use of domestic energy resources. Exec. Order No. 14154, 90 Fed. Reg. 8353, 8354 (Jan. 20, 2025); see also U.S. Dep’t of the Interior, Sec’y Order No. 3418, Unleashing American Energy § 4(b) (Feb. 3, 2025). …Open this footnote Close

Notwithstanding a potentially cloudy future, the BENM management plan sets a foundation for collaborative involvement in the management of these important landscapes. That new baseline ensures that Native voices will meaningfully decide how those landscapes are managed going forward and provides a framework for continued engagement. Thus, tribal leadership in the management of BENM can and will continue to flourish in both substantive decisions and procedural collaboration.

B. Gravel to Gravel Initiative. 

Like the cultural importance of the Bears Ears landscape to Native Nations in the region, Pacific salmon have been a critical keystone of Native culture and existence across what is now known as Alaska. Unlike treaty-reserved rights to access and take salmon, however, Alaska Native Tribes maintain their connections to salmon under a wholly different legal framework tied to the somewhat unique legal history of the State of Alaska. That history and the laws governing the ongoing lifeways and existence of salmon and the Native people and cultures to which they are intimately connected have necessarily implicated both federal and state authorities, including those asserted by the State as a result of its 1959 admission to the Union. Within that complex legal environment, Pacific salmon face numerous threats along their migration from gravelly riverbeds to the Pacific Ocean and back again.

Considering those threats and the centrality of Pacific salmon to Alaska Native Tribes and people, various United States agencies recently committed to working with a range of those Tribes and Native coalitions to develop an integrated approach for co-stewardship and co-management focused on the restoration of salmon populations. Those efforts, known as the Gravel to Gravel Initiative, were formalized in a Memorandum of Understanding signed by the parties in October 2024. 65Open this footnote Close this footnote 65 .U.S. Dep’t Interior et al., Memorandum of Understanding (2024), https://perma.cc/‌5UXY-Z5AZ (archived May 30, 2025). …Open this footnote Close That agreement defines how the various federal agencies and tribal governments and entities will work together to support four key, shared objectives, including the support of tribal sovereignty and self-governance through advocacy “for tribal stewardship and tribal recommendations regarding decision-making and regulatory authority in wildlife ecosystems and fisheries management.” 66Open this footnote Close this footnote 66 Id. at 2. …Open this footnote Close That work relies on a range of federal laws and authorities, all supporting an expanded role for tribal governments in the work of protecting salmon and their habitat across what is now Alaska. 67Open this footnote Close this footnote 67 Id. at 2-3. …Open this footnote Close

Like the collaborative management framework established for BENM, the Gravel to Gravel Initiative secures a new and expanded space for tribal interests and sovereignty in the management of lands, waters, and wildlife. The expression and exertion of those interests and authority serve to both improve strategies and results on the ground while also helping to redefine the historical baseline for how such management takes place. Thus, like similar examples expanding across the United States, Native Nations are actively asserting a more equitable collaborative regime to engage their interests across landscapes where, historically, only federal and state governments exerted significant control. 68Open this footnote Close this footnote 68 See, e.g., Dep’t of the Interior, Third Annual Report on Tribal Co-Stewardship (2024), https://perma.cc/‌JSG9-TQ9T (archived May 30, 2025). …Open this footnote Close

Importantly, though many of those efforts rely on treaty-reserved rights—like those acknowledged and protected by the Supreme Court—others, including the tribal interests in BENM and across Alaska, are relying on other federal laws authorizing and supporting these collaborative approaches in furtherance of tribal sovereignty and consistent with the United States’ overarching trust duties to Native Nations. Therefore, as this movement continues to progress, state challenges seeking to protect the status quo ante by minimizing or rejecting these tribal interests are likely to seize on exclusionary and historical notions of statehood to distinguish the Court’s treaty rights jurisprudence. Though those arguments find some support in decisions coming down since Herrera, the actual state of things is more consistent with the Court’s more-than-a-century-old recognition and support of shared governance.

III. Looking Ahead: A New Era Meets Old Habits. 

As noted above, state challenges to federal authority over public lands and waters seek to upend or redefine the balance of federal and state management. If successful, however, many of these challenges would also substantially limit, if not prevent, the further expansion of tribal interests within that framework. In Alaska, for example, the State is once again asserting its authority to manage waters and fisheries to the exclusion of federal power and associated tribal interests. 69Open this footnote Close this footnote 69 See Appellants’ Opening Brief at 1-5, 29-39, United States v. Alaska, No. 24-2251 (9th Cir. filed Apr. 10, 2024). …Open this footnote Close There, echoing Wyoming’s arguments in Herrera and Washington’s arguments in Winans, the State relies on authorities it acquired upon joining the Union as a basis for excluding federal oversight. If successful, Alaska’s arguments would severely undercut the Gravel to Gravel Initiative and its promise for broader salmon recovery through a collaborative approach.

Similarly, Utah’s recent efforts to seek the Court’s original jurisdiction to challenge the constitutional status of unappropriated federal public lands within that State’s boundaries suggested that the equal footing doctrine prohibited Utah’s sovereign interests from being so limited. There, the State’s arguments recall its longstanding opposition to BENM and, though the focus of the litigation was on other federal lands, would result in a new dynamic of state authority over lands important to tribal interests. Though the Court rejected Utah’s request, that effort was only one salvo in a much broader effort by that State. 70Open this footnote Close this footnote 70 See, e.g., Kevin Lind, Who Owns the Land?, Deseret News (Mar. 5, 2025, 9:00 PM MST), https://perma.cc/‌U9PE-LZ5Y (“The state has spent $1.35 million on advertising for [its] campaign [to reclaim federal public lands], including a website, and ads in The Wall Street Journal, National Review and The Washington Post, podcasts, videos and scores of billboards . . . .”). …Open this footnote Close Thus, the state strategies and extensive tribal interests at stake in each of these—and similar—challenges will implicate principles of statehood and tribal interests that have been core to the Court’s earlier and modern jurisprudence.

As these challenges arise, the consistency of that jurisprudence is once more in question. Despite the doctrinal clarity regarding the co-existence of tribal-reserved rights and state authority rendered by Herrera, the Court subsequently hinted at a continuing affinity for its outdated, binary views of state authority and tribal interests. In doing so, the Court continues its cyclical reliance on doctrinal departures as well as its more recent subjectivist tendencies favoring state interests. Though not dealing with treaty-reserved rights related to off-reservation resources, the majority of the Court in its 2022 decision in Oklahoma v. Castro-Huerta decried the dissent’s reliance on treaty provisions to exclude state criminal jurisdiction from reservation lands, saying instead that “those treaties, in relevant part, were formally supplanted no later than the 1906 Act enabling Oklahoma’s statehood.” 71Open this footnote Close this footnote 71 Oklahoma v. Castro-Huerta, 142 S. Ct. 2486, 2503 (2022). …Open this footnote Close Once again, like the Rehnquist Court’s favoring of state interests, the Castro-Huerta majority relied on notions of statehood from the late 1800s to support its reasoning, an approach that veered sharply away from the Court’s repudiation of those ideas just a few years prior in Herrera. 72Open this footnote Close this footnote 72 Cf. Ablavsky, supra note 4, at 337 (noting that, as the Court held in both Herrera and Mille Lacs, “in the absence of explicit congressional language, statehood alone does not implicitly extinguish treaty rights,” rendering it “difficult to claim that statehood implicitly repeals a valid and applicable federal statute, as McBratney held”). …Open this footnote Close

In 2023, to resolve a long-running challenge over water rights in the Colorado River in Arizona v. Navajo Nation, the Court considered whether the Navajo Nation’s treaties with the United States obligated the federal government to assist the Nation in identifying and potentially securing water rights necessary to fulfill the purposes of those agreements. Though the litigation relied upon the Nation’s Winters rights, the central issue was whether the United States’ trust duties supported injunctive relief to require federal agencies to act in furtherance of those rights. 73Open this footnote Close this footnote 73 See Arizona v. Navajo Nation, 143 S. Ct. 1804, 1810 (2023). …Open this footnote Close

While no member of the Court disputed the ongoing vitality of the Winters doctrine and the importance of tribal rights reserved thereunder, the majority narrowly interpreted the relevant treaty language to conclude that the United States is not obligated by any “affirmative duty” to help the Nation ensure the promise of those legal rights could be realized with actual access to water. In support of its limited interpretation of the treaty, the majority pointed to assertions by numerous other non-Native water associations and users that honoring the Navajo position would severely disrupt their existing water rights and access. 74Open this footnote Close this footnote 74 Id. at 1814-15. …Open this footnote Close Given this “zero-sum situation,” the majority was convinced it needed to “stay in [its] proper constitutional lane” and leave to others how to address “competing contemporary needs for water.” 75Open this footnote Close this footnote 75 Id. …Open this footnote Close This nod to the non-Native interests at stake and consideration of how the assertion of tribal rights might affect the situation on the ground also harkens back to Rehnquist-era deference to state interests, suggesting that how the Court thinks the situation “ought to be” may still influence its approach to doctrinal interpretation. 76Open this footnote Close this footnote 76 Memorandum from Justice Antonin Scalia to Justice William Brennan, Jr. (Apr. 4, 1990), in Matthew L.M. Fletcher, Federal Indian Law 345 (2016); see also David Getches, Conquering the Cultural Frontier: The New Subjectivism of the Supreme Court in Indian Law, 84 Calif. L. Rev. 1573, 1575 (1996). …Open this footnote Close

The recent return of the current Court to its bygone views of expansive state authority and subjectivist habits runs counter to its own treaty rights jurisprudence of the last decade and its foundational work in those areas in the early 1900s. Rightly critiqued as failures in the Court’s approach to history, 77Open this footnote Close this footnote 77 See Ablavsky, supra note 4, at 297-98. …Open this footnote Close or its use of “canary textualism,” 78Open this footnote Close this footnote 78 See, e.g., Matthew L.M. Fletcher, Muskrat Textualism, 116 Nw. U. L. Rev. 963, 967-68 (2022). …Open this footnote Close these habits demonstrate the cyclical nature of the Court’s affinity for state power or interests and tendency to rely on outdated ideas of both to the detriment, if not exclusion, of tribal rights.

Contrary to these old habits, which lock in a static notion of the tribal-state relationship, rooted in ahistorical notions of statehood or myopic views of state interests, the Court’s foundational Indian law principles, as expressed in Winans and Winters, ensure ongoing space in which both tribal and state interests and authorities could co-exist. Relying on that legal foundation and despite the Court’s wavering commitment to it, Native Nations have greatly expanded their role and authority in that space, resulting in a movement now recognized as reshaping historical notions of resource management. And, though rooted in and drawing on the Court’s treaty rights jurisprudence, this movement has expanded to include a range of Native Nations asserting other reserved rights and broader interests associated with lands and resources with which they maintain longstanding cultural connections. 79Open this footnote Close this footnote 79 See, e.g., Cohen’s Handbook, supra note 11, § 9.03[2][a] at 618. …Open this footnote Close

The impacts of this movement are ubiquitous and significant. Native Nations play a central role in the stewardship of lands and resources on which they and many others rely, including national parks, national wildlife refuges, and large swaths of forests and rangelands. Tribal governments, their officials and staff, collect, maintain, and rely on important data assessing the health and sustainability of these and related resources, often far exceeding the capacity and understanding of their state and federal counterparts. Intergovernmental management of wildlife in nearly every region of the country helps ensure ongoing access by Native and non-Native hunters and fishers while reducing the potential for conflicts and enabling the sharing of critical information on species population and viability. Native Nations have led the way in returning species from the brink of extinction and are working to reintroduce and support others that have long disappeared from their original homelands. In the national forests, the return of fire as a cultural and relational practice promises a more vibrant and less dangerous future for forests and wildland communities. In short, concurrent with the rise of domestic Indigenous sovereignty, the last half century has drastically reshaped the role of tribal governance in the management of natural resources that had previously been entirely the province of the state and federal governments.

The Court acknowledged the power and potential of this capacity and capability of Native Nations in its landmark 2020 decision in McGirt v. Oklahoma. Like the Crow Nation’s commitment to ensure appropriate regulatory oversight of its members exercising the treaty rights confirmed in Herrera, the McGirt majority recognized the extensive tribal governance and commitment to intergovernmental collaboration as a basis for rejecting Oklahoma’s attempts to erase treaty-reserved reservation boundaries. 80Open this footnote Close this footnote 80 McGirt v. Oklahoma, 591 U.S. 894, 936-37 (2020). …Open this footnote Close Since then, while the Court may have wavered in its willingness to recognize the import of that reality, Native Nations have not. Having now entered numerous formal agreements to help steward federal lands and resources, 81Open this footnote Close this footnote 81 See, e.g., Dep’t of the Interior, supra note 68. …Open this footnote Close and relying on treaty-reserved authorities as well as less formal cooperative arrangements to play a central role in similar activities across many other regions, the current state of affairs in the management of lands, waters, wildlife, and ecosystems is now decidedly oriented toward Native Nations in much of the country.

This result is exactly what the Court’s longstanding approach to tribal rights and statehood predicted when it recognized their necessary coexistence and rejected an absolutist approach to deciding between the two. Furthermore, the burgeoning collaboration on the ground and the likelihood that such collaboration builds stronger alliances, reduces conflicts, and produces better results for all involved provides ample factual bases on which the Court can be assured that its adherence to those doctrinal principles is also the way the results “ought to be.” Thus, even if tempted to revert to old habits, the Court can find ground on which to ensure the continued sharing of space between tribal interests and statehood remains a viable, if not necessary, path forward. Doing so would align the Court with both its most honorable jurisprudential legacy and the reality that Native Nations will define the present and future of our natural world.

Conclusion

This Symposium opens with Justice Gorsuch’s powerful reminder that, despite the Supreme Court’s tendency to marginalize Native Nations, “that is not because th[e] Court has no justice to offer them.” 82Open this footnote Close this footnote 82 See Promises of Sovereignty: A Quarter Century of Federal Indian Law in the Supreme Court, Stan. L. Rev., https://perma.cc/‌4PDS-MPVK (archived Apr. 24, 2025) (quoting Haaland v. Brackeen, 143 S. Ct. 1609, 1661 (2023) (Gorsuch, J., concurring)). …Open this footnote Close Instead, as Justice Gorsuch observed, Native Nations retain “an enduring place . . . in the structure of American life.” In that tradition, the Court has insulated rights reserved by those Nations from attempted incursions by states premised only on the origins and existence of their statehood. Relying on those rights and calling on that tradition through decades of continuing battles with their state counterparts, Native Nations and their advocates are now leading the way in a new era defined by their leadership in the stewardship of shared lands, waters, wildlife, and ecosystems. With millennia of connections to those resources and capable governments to press and protect those connections, such leadership by Native Nations promises better days ahead.

Though the foundations of the current era can be traced to the Court’s commitment to ensure an enduring place for Indigenous leadership, the Court has regularly retreated from that guarantee in favor of broadly asserted state powers or interests. As present and future challenges once again raise the specter of those old habits, the Court can now bolster its pursuit of the justice described by Justice Gorsuch with a corresponding recognition of this new reality. Unlike perhaps any other time in its history, the Court can now look to a well-established record of successful resource management, led by or significantly relying on the work of Native Nations, as factual support to supplement its doctrinal commitment to avoiding an absolutist approach that favors statehood. Doing so would avoid adding chapters to the “old and familiar story” of the Court relying on outdated habits to uphold expansive state claims and, instead, ensure Native Nations can continue to write a better story, one rooted in the Court’s best traditions and full of promise for a brighter future. 83Open this footnote Close this footnote 83 Wash. State Dep’t of Licensing v. Cougar Den, Inc., 139 S. Ct. 1000, 1021 (2019) (Gorsuch, J., concurring). …Open this footnote Close

* Monte Mills is a Charles I. Stone Professor of Law and Director of the Native American Law Center at the University of Washington School of Law. The author thanks the Stanford Law Review for hosting an outstanding Symposium and for excellent review and editing assistance. The author is also grateful to friends and colleagues who participated in the Symposium as well as Professor Vanessa Racehorse and faculty at Colorado Law, all of whom offered helpful comments and perspectives on earlier drafts. Finally, thanks to Lauren Young, whose research and editing assistance was immensely helpful. The author alone is responsible for any errors or omissions.