I meant what I said, and I said what I meant. An elephant’s faithful, one hundred percent! —Dr. Seuss, Horton Hatches the Egg Introduction This Comment seeks to defend Justice Neil Gorsuch’s approach to statutory interpretation, arguing against pragmatist efforts to reduce the Supreme Court’s reliance on textualism and against efforts by fellow self-proclaimed textualists…
Montana v. US is a case about tribal civil jurisdiction. Yet it has had a second life in a surprising context: federal statutes of general applicability that do not mention tribes. This Comment explores the circuit split on these silent statutes and shows that Montana is the doctrinal lynchpin for every court that has considered…
Introduction The creation of Indian reservations largely coincided with and was facilitated by the development of presidential authority to withdraw public lands for Indian purposes. Of the roughly 42.8 million acres of total tribal trust lands in 1951, slightly over 23 million were set aside through executive order. That number far dwarfs any other method…
I. Implicit Divestiture Presumes Cultural Incompatibility Tribes have a precarious political posture in relation to the United States. Tribes are distinctly sovereign and extra-constitutional, but are also without meaningful external infrastructure to define and protect their legal status in relation to the United States. That is, the U.S. recognizes Tribes as “domestic dependent nations,” but…
Introduction For more than two centuries, the United States has maintained—in law and in practice—a colonial system designed to destroy Indigenous peoples’ culture. My work has explored this phenomenon from a property lens, explaining how attacks on Indigenous cultures traverse and encompass all categories of property, including real, tangible, and intangible. From a property perspective,…
Introduction After rising from the depths of eras in which the United States intended to eliminate Native Nations, 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…
Introduction The Supreme Court is accumulating power. Call it “concentrating power in the court,” a “judicial power grab,” or (as a growing number of scholars are calling it) “judicial aggrandizement” or “judicial self-aggrandizement.” Each of these ideas describes a Supreme Court that is upsetting accepted notions of the separation of powers—accumulating power for itself, often…
There is something irritatingly wrong with Indian law practice at the Supreme Court. Oral argument at the Supreme Court is a bitterly unpleasant affair for Indigenous people and tribal advocates for a lengthy variety of reasons. It is canonical that tribal advocates must attempt to avoid Supreme Court review; the strategic thinking is that the…
Introduction Imagine the lost world of “lawfinding.” In that world, there was a general common law for federal judges to find. And in that world, each statute had a “single, best meaning” for judges to unearth with the traditional tools of statutory interpretation. Of course, we are not going back to that world. Too much…
Something bizarre is happening in Oklahoma. The state’s high courts, well-versed by long experience in federal Indian law, are rewriting fundamental rules of that field. Since 2022, the Oklahoma Supreme Court and Oklahoma Court of Criminal Appeals have rejected challenges to state jurisdiction over tribal citizens in child welfare, domestic violence, and ordinary criminal matters.…
