Feature

Legislative Constitutionalism and Federal Indian Law

This Feature offers alternative strategies and visions for a less court-centered constitutionalism with a case study of federal Indian law and American colonialism—a case study that places not only Congress, but the philosophies and agency of Native people and nations at the center of our constituti…

Forum

The Power of Tribal Courts in Ongoing Environmental-Tort Litigation

The groundbreaking environmental tort-litigation across the country has overlooked the potential role of tribal courts. Using an original empirical analysis of over 300 cases, this Essay outlines tribal-court jurisdiction over environmental-tort cases in the wake of attacks on tribal sovereignty in …

Forum

Water Rights of Public Domain Allotments

This Essay argues that public domain allotments (PDAs) are Indian Country and entitled to federal reserved water rights. By comparing federal statutes creating allotments and using the Indian Canons of Construction, the Essay uses California as a case study to show that PDAs have rights to water out…

Note

Native Voting Power: Enhancing Tribal Sovereignty in Federal Elections

Restrictive voting laws not only infringe upon the rights of individual Native American citizens but also denigrate tribal sovereignty. This Note argues that to fulfill its trust obligation to tribes, Congress should require state election officials to form compacts with tribes governing the adminis…

Note

“We Hold the Government to Its Word”: How McGirt v. Oklahoma Revives Aboriginal Title

McGirt’s insistence on unambiguous proof of Congress’s intent created an opening for aboriginal-title suits against the United States. By enforcing the congressional-intent requirement, McGirt cleared the sovereign immunity and preclusion bars that have stymied such suits. An overlooked Tenth Circui…

Article

Empire States: The Coming of Dual Federalism

In the standard account of federalism’s eighteenth-century origins, the Framers divided government power among two sovereigns to protect individual liberties. This Article offers an alternative history. It emphasizes that federalism was a form of centralization—a shift of authority from diffuse quas…

Forum

Environmental Justice and Tribal Sovereignty: Lessons from Standing Rock

The Standing Rock protests represent the latest iteration of longstanding tribal dissent against an environmental law framework that overlooks their interests. This Essay contends that the environmental movement’s failure to advocate for the restoration of tribal sovereignty has also left intact a l…

Forum

Oral Tradition and the Kennewick Man

In April 2016, the U.S. Army Corps of Engineers confirmedthat the ancient human body discovered in 1996 near Kennewick, Washington,often referred to as the “Kennewick Man” or “The Ancient One,” is geneticallyrelated to modern-day Native Americans. Thisconfirmation ended a twenty-year-long struggle b…

Forum

Contract and (Tribal) Jurisdiction

Consider two commercial contracts. The first requires customers to waive their rights to bring class actions against large businesses in favor of private arbitration. The second requires a reservation leaseholder to adjudicate disputes in tribal court. Both contracts require dispute resolution in fo…

Article

Beyond the Indian Commerce Clause

This Article uses unexamined historical sources to argues that the Indian Commerce Clause, open-ended when written, was a minor component of eighteenth-century constitutional thought. This history provides a more solid foundation for doctrinal principles derided as incoherent, and suggests more cabi…

Forum

(Re)Solving the Tribal No-Forum Conundrum: Michigan v. Bay Mills Indian Community

Michigan v. Bay Mills Indian Community, a dispute over a controversial off-reservation Indian casino, is the latest opportunity for the Supreme Court to address the doctrine of tribal sovereign immunity. The Court could hand Michigan a big win by broadly abrogating tribal immunity, and in turn wreak…

Review

Lightning in the Hand: Indians and Voting Rights

120 Yale L.J. 1420 (2011). 

American Indians and the Fight for Equal Voting Rights

By Laughlin McDonald

Norman, OK: University of Oklahoma Press, 2010, pp. 347. $55.00.

Article

In Defense of Property

118 Yale L.J. 1022 (2009).

This Article responds to an emerging view, in scholarship and popular society, that it is normatively undesirable to employ property law as a means of protecting indigenous cultural heritage. Recent critiques suggest that propertizing culture impedes the free flow of i…

Note

Property Rights and Sacred Sites: Federal Regulatory Responses to American Indian Religious Claims on Public Land

113 Yale L.J. 1623 (2004)

The courts and Congress have left sacred sites protection in the hands of land management agencies, and although many feared this decision would be disastrous, land agencies have actually embraced their role and sought to accommodate Indian religions and protect their sacred…