Abstract
Excerpted From: Gregory Ablavsky, Structural Federal Indian Law after Brackeen, 67 Arizona Law Review 291 (Summer, 2025) (342 Footnotes) (Full Document)
“You know, when it comes to Indian law, most of the time we're just making it up.” In thus summing up the Supreme Court's jurisprudence, Justice Scalia captured the sense of many scholars and practitioners, and, evidently justices too, that federal Indian law is unmoored from solid doctrinal foundations. Many of the field's dominant principles, concepts like the federal trust responsibility or so-called implicit divestiture, have vague sources and status; it is often unclear what kind of rule--statutory? federal common law? constitutional?--they actually are. Meanwhile, the field's one unambiguously constitutional doctrine, Congress's plenary and exclusive federal authority over “Indian affairs,” strikes many as similarly made up because, they argue, it has little foundation in the Constitution's text.
For many years, these uncertainties did not seem to trouble the Court. Despite considerable scholarly critique, the justices contently repeated the same formulas that they had advanced for centuries without seriously interrogating them.
No longer. Rumblings began in 2004 with United States v. Lara, a challenge to Congress's broad authority to regulate the “metes and bounds” of tribal sovereignty. Though a bare majority of the justices invoked conventional precedents to reject the suit, four justices expressed doubts about the Court's Indian law jurisprudence. This skepticism persisted in the ensuing two decades in various separate opinions, but it has dramatically resurged in recent terms. In particular, during its 2022 October Term, in Haaland v. Brackeen, a constitutional challenge to the Indian Child Welfare Act (“ICWA”), the Court squarely confronted the question of the source of federal authority in Indian affairs for the first time since Lara.
Writing for the Brackeen majority, Justice Barrett upheld the status quo, but not happily. Her opinion rounded up the usual constitutional suspects, stressing that the Court's precedents establish that “Congress's power in this field is muscular, superseding both tribal and state authority.” But it also critiqued the Court's Indian law jurisprudence as “unwieldy” and acknowledged “confusion.” And in rejecting Texas's challenge, it invited a “theory for rationalizing this body of law.”
Justices Gorsuch and Thomas took up this call in separate opinions, offering lengthy investigations of the constitutional foundations of the federal Indian affairs power. Their explorations of the question--each over 30 pages long--were more detailed and expansive than anything that had appeared in any prior Supreme Court decision. Moreover, unlike the majority opinion embracing the status quo, both of their “theories” would cabin the scope of federal power and dramatically alter existing law--although in sharply different ways.
This Article assesses the conflicting theories from Brackeen and tries to make sense of the current moment of doctrinal confusion and uncertainty over Indian law. It seeks to offer not a single “theory,” but a fuller understanding of how and why the Court's much-maligned Indian law jurisprudence looks the way that it does--one that I believe offers a clearer, more rigorous, and more disciplined method to approach questions of authority in federal Indian law.
The key to this move, this Article posits, is a term that makes a brief, seemingly throwaway appearance in the majority opinion, as well as more substantial invocations in Justice Gorsuch's concurrence: “structure.” It may seem obvious that in a case determining the scope of federal, state, and tribal authority, the question of how the Constitution orders these governments is relevant. “[S]tructural constitutional law,” in the words of one set of commentators, consists of “the authoritative legal norms that guide the workings of government and the distribution of government power.” Under that definition, much of federal Indian law, which fundamentally grapples with how power is distributed among Native, state, and federal governments, is a subset of structural constitutional law.
Yet this is not how the field is treated. Both judicial decisions and scholarship addressing structural constitutional law seldom discuss Native nations; they tend to focus almost exclusively on either the separation of powers within the federal government or the federalist division of authority between states and the federal government. Meanwhile, the question of constitutional structure--indeed, even the term “structure” itself--seldom appears in the Court's Indian law jurisprudence.
There are several reasons for this omission. One is the perception that “[t]he constitution of the United States is almost silent in regard to the relations of the government which was established by it to the numerous tribes of Indians within its borders,” as the Supreme Court opined in the canonical case United States v. Kagama. This absence has led some justices to conclude that Native nations are a “sovereignty outside the basic structure of the Constitution” (Justice Kennedy, cited approvingly by Chief Justice Roberts or “not part of this constitutional order” (Justice Thomas).
These claims do not withstand scrutiny. It is true that the constitutional text does not explicitly codify or limit tribal sovereignty. But ambiguity is not the same as absence. It is a simple, indisputable fact that Native nations have been part of the “constitutional order” of the United States ever since they were forcibly included within the nation's borders. Moreover, the problem of constitutional silence is hardly unique to Indian law: the constitutional text also fails to specify whether, say, states are constitutionally immune from suits by their own citizens, whether the federal government can commandeer state officials, or what the constitutional role and status of administrative agencies is. Arguably, how to resolve such problems of constitutional textual underdetermination is the central challenge of structural constitutional law.
The second challenge is that to the extent structural constitutional law and federal Indian law have been in dialogue, it has involved substantive comparisons: arguments that the legal category of “Indian tribes” is similar to the category of foreign nations, or territories, or, most commonly, states. This has led to a scholarly and sometimes judicial debate over the extent that tribes and Indian law more generally are “exceptional.” As a legal matter, however, this debate strikes me as tautological, since the very act of creating a distinct legal category makes that category ““exceptional”: a “county” is, by definition, different from a “state.” Moreover, defining something as “exceptional” is a fraught normative exercise that requires proclaiming another category to be “normal.”
Instead of rehashing debates over the exceptionality of federal Indian law, this Article turns to structural constitutional law for guidance on how to address the purported problem of constitutional “silence.” In contrast with federal Indian law, when the constitutional text fails to resolve a question of federalism or separation of powers, the Court does not throw up its hands and declare the issue “extraconstitutional.” Instead, the Court has developed a well-established set of doctrinal tools to resolve this problem. The conventional sources include principles implicit in the constitutional text; preconstitutional intellectual and political history; Founding Era drafting history and constitutional debates; and post-ratification history and practice, with particular emphasis on the early federal government.
The existence of this methodology doesn't mean that the Court does structural constitutional law particularly well. I suspect many in the field would argue that the Court is just making things up there, too. But viewed from the environs of federal Indian law, the grass really does look greener. In federal Indian law, uncertainty around the nature and source of legal principles creates what feels like a classificatory game that emboldens the justices and frees them from judicial discipline. By contrast, agreement on sources and their relevance in structural constitutional law, however rough, cabins the discussion and brings rigor to the debate.
Moreover, structural constitutional law's reliance on history and practice is particularly well-suited to federal Indian law. The Constitution itself might have been “almost silent” on Native nations' status, but that does not mean federal policymakers, federal and state judges, or Native leaders were. On the contrary, because Native nations' status has been the subject of constitutional debate since the Founding, there are lots of sources seeking to define the balance between federal, state, and tribal authority-- many of them precisely the same kinds of evidence that the Court draws on to resolve other disputes over governmental power.
In a sense, there may actually be too many sources, since, as I have explored elsewhere, the sheer array of historical evidence can be overwhelming given the wild swings on seemingly fundamental questions that occurred in nearly every generation in federal Indian law. But focusing on the oscillating debates over federal Indian policy obscures what were deeper foundational questions about constitutional authority--especially of the federal government over Native nations and states.
On these intertwined questions--what Justice Gorsuch terms the Constitution's ““Indian-law bargain” Indian law has really only offered what I summarize as two answers. The first answer came during the Founding Era and concluded that Native nations, while in some sense subordinate to U.S. sovereignty, nonetheless lay outside the legislative jurisdiction of Congress (and entirely outside state jurisdiction) by virtue of their own sovereignty. As this principle was challenged over the nineteenth century, a new second answer arose and became dominant during Reconstruction. Under this doctrine, conventionally labeled as “plenary power,” Native nations retained what U.S. officials usually described as self-government, but they were subject to Congress's legislative authority (even as they remained largely immune from state authority)--a power that expanded to encompass regulatory power over all aspects of Native life. Over the course of the twentieth century, federal policy shifted again, ultimately embracing Native self-determination. But even as both the realities and doctrine of federal Indian law changed substantially, the principle that the federal political branches had complete authority to structure national relations with Native nations endured.
Just as with structural constitutional law, reconstructing these two answers does not offer a single “theory” to “rationaliz[e]” federal Indian law, since it doesn't tell us which view is legally correct. Deciding what answer is right is a jurisprudential question that hinges on which sources of law we privilege and why. Nonetheless, recovering the history of these structural debates helps bring a new rigor and clarity to the current moment.
In particular, many justices have obviously grown weary of the “made up” nature of the Court's Indian law jurisprudence and so have gone rummaging in the past to try to bring a new “coherence” to the law. But plucking principles from history without any jurisprudential explanation, often to justify ideological conclusions, doesn't actually solve the uncertainty and subjectivism that has plagued this field; it is just a way to make law up with more
. Careful reconstruction of doctrinal history underscores that the past is not just a grab bag: each of these historical answers implies a logic and set of legal assumptions that they rested on, and so selecting historical evidence is also a jurisprudential decision--which is a decision about law. This Article thus uses the jurisprudential history of structural federal Indian law to examine the Indian law theories of the Brackeen majority, as well as of Justices Gorsuch and Thomas, and assesses how their perspectives might fit--or not--within the history of Native nations' place within the constitutional order.
Reconstructing these answers also faces another challenge. More accurate accounts of doctrine crafted largely by non-Natives and applied to Native peoples do little to resolve the field's fundamental normative problem, its entanglement with colonialism. Indeed, given federal law's long-standing denigration of Native peoples, that law's past is not the best place to look for the foundations of an anti-colonial legal order. And yet, for the foreseeable future, Native nations and their advocates will continue to confront this current Court as it turns to history to remake federal Indian law. Shifting from descriptive to normative, then, this Article seeks to adopt the perspective of those advocates and suggests one way to navigate the unsettled moment of Indian law jurisprudence. In particular, it argues that the seemingly endless debates over plenary power that have long dominated the field are, at least right now, a potentially dangerous doctrinal sideshow that seeks to relitigate the past rather than think about how to successfully navigate the legal challenges that confront Native peoples today. Ultimately, I am skeptical that the Court is especially well-suited to remedying prior harms through doctrine. The most important function that federal Indian law doctrine can currently play, in my view, is to provide Native nations and the federal political branches the space and the stability needed to address these questions themselves.
In making these arguments, this Article proceeds in four Parts. Part I outlines the current classificatory challenge and uncertainty that dog federal Indian law and compares it to the methodology developed within structural constitutional law. Part II reconstructs what I have termed the two answers to the question of tribal, federal, and state authority in the constitutional order. Part III then uses this framework to assess the competing views of the justices on federal Indian law. Part IV shifts from descriptive to normative to examine how Native nations and their advocates might try to navigate the current moment of doctrinal and jurisprudential uncertainty.
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During his time on the Court, Justice Scalia wrote a memo that provides some additional context to his comment about “making up” federal Indian law. The Court's Indian law precedents, he observed with frustration but resignation, were based less on “explicit legislation” than on attempts to “discern what the current state of affairs ought to be by taking into account all legislation, and the congressional 'expectations' that it reflects.”
These comments are notorious among Indian law scholars because they epitomize the sort of subjectivism and purposivism that jurists like Justice Scalia disdained. “[T]his Court's proper role ... is to declare what the law is, not what we think the law should be,” Justice Kavanaugh intoned in Castro-Huerta. Such pieties mask the reality that deciding what the law is in the absence of “explicit legislation” turns out to be difficult.
But not impossible. This Article has argued that the Court does not need to turn to amorphous “expectations,” or its own policy judgments, to fill the gaps created by the absence of text in federal Indian law. The Court, after all, routinely adjudicates clashes over authority and jurisdiction that it itself concedes are not resolved by any dispositive text. The answers that this approach produces are still hotly contested, but they at least usually come through a method that is legible and understandable, including to the Court's critics. This Article has tried to bring some of that discipline to both the messy past of federal Indian law and to the field's current moment of uncertainty. Indian law may be confusing, but arguably no more or less so than other fields governed by judicially crafted rules that have emerged through two centuries of debate. The Court should stop using this difficulty as an excuse to make law up.
Marion Rice Kirkwood Professor, Stanford Law School; Professor of History (by Courtesy), Stanford University.
