Tag Archives: Native Peoples Law

Against Anticommandeering in Indian Law

Mar 5, 2026 Aila HossNative Peoples LawAdd a Comment

In its foundational Indian law decisions, the U.S. Supreme Court has consistently recognized federal supremacy on all matters regarding Indian affairs. This plenary power can preempt both Tribal and state authorities. SCOTUS granted certiorari in Haaland v. Brackeen to assess the constitutionality of the Indian Child Welfare Act (ICWA), with some of the challenges being on the basis that the law infringes on state authority under the Tenth Amendment’s anticommandeering doctrine. Indian country anxiously awaited to see if the court would once again abandon longstanding Indian law precedent in favor of state rights, as it recently did in Oklahoma v. Castro Huerta. The court concluded that ICWA was valid. But, the decision left me confounded on the continued viability of anticommandeering arguments to strike down federal Indian affairs legislation. Fortunately, Professor Ann Tweedy’s recent article, Anticommandeering & Indian Affairs Legislation, published in the Harvard Journal on Legislation, considers the applicability of anticommandeering to Indian law following Brackeen.

The anticommandeering doctrine holds that when Congress requires states to adopt or enforce federal law, such actions violate the Tenth Amendment. First articulated by the Supreme Court in the 1990s under the Rehnquist court, the doctrine has been successfully used to strike out provisions of various pieces of federal legislation including the Low-Level Radioactive Waste Policy Amendments Act (required states to take title and assume liability for radioactive waste within their borders), the Brady Handgun Violence Protection Act (required state and local law enforcement to conduct background checks on prospective gun buyers), and the Professional and Amateur Sports Protection Act (prohibited states from establishing sports gambling regulatory schemes).

Congress passed ICWA in 1978 in response to “an alarmingly high percentage of Indian families [] broken up by the removal, often unwarranted, of their children from them by nontribal public and private agencies and [] an alarmingly high percentage of such children are placed in non-Indian foster and adoptive homes and institutions.” In custody proceedings involving an Indian child, the law provides Tribes sole jurisdiction when the child resides or is domiciled in Indian country or when the child is a ward of a Tribal court. In all other scenarios, Tribes and states maintain concurrent jurisdiction. When the proceedings are in state court, ICWA mandates substantive and procedural safeguards to ensure Tribal access to the proceedings and to prevent the breakup of Indian families. ICWA also establishes placement preferences for members of the child’s extended family; other members of the Indian child’s Tribe; and other Indian families. ICWA has led to increased Tribal participation and Indian placements in applicable child custody proceedings.

The original plaintiffs (three non-Native couples, the birth mother of an Indian child, and Texas, Louisiana, and Indiana) challenged ICWA on a variety of bases, including the nondelegation doctrine, the Equal Protection Clause, and the Tenth Amendment. In the Court’s June 2023 decision, none of these challenges proved successful, although the Court dismissed the equal protection arguments due to lack of standing, leaving room for future litigation on that issue on the merits. In the context of anticommandeering, Justice Barrett, writing for the majority (joined by Roberts, Sotomayor, Kagan, Gorsuch, Kavanaugh, and Jackson), dismissed the numerous anticommandeering arguments raised by the plaintiffs against various ICWA provisions. Professor Tweedy deftly untangles all of the arguments and the Court’s response against their application.

To summarize, the Court concluded that the anticommandeering doctrine does not apply to legislation like ICWA “that applies ‘evenhandedly’ to state and private actors.” It also found that ICWA’s placement preferences and recordkeeping requirements were not sufficiently burdensome to run afoul of the Tenth Amendment. Finally, it found that Congress can direct state courts to follow federal law due to federal preemption.

Although the anticommandeering doctrine was not successful in striking down ICWA, it could be successful in striking down other federal Indian laws. Professor Tweedy argues that the majority could have made the case against the application of the anticommandeering doctrine more simply and more broadly: “[T]he Tenth Amendment generally has no application in the context of Indian Affairs legislation, particularly where Congress has directly spoken on an issue, given Congress’s plenary power in that area.” (P. 59.) Instead, the Court took what Professor Tweedy describes as a “granular” approach the application of the anticommandeering doctrine in Indian affairs. By doing so, the Court opens the floodgates to litigation on other Indian affairs legislation.

Professor Tweedy highlights another important flaw in the majority’s discussion of anticommandeering. The Court had previously only examined the anticommandeering doctrine against federal legislation passed under Congress’s interstate commerce authority. The Court fails to consider whether the doctrine should apply in the context of the Indian Commerce Clause, part of the basis of federal supremacy in Indian affairs, the scope of which differs from that of the Interstate Commerce Clause.

The anticommandeering doctrine is not going away. But Professor Tweedy’s important work may provide a path to limit the viability of anticommandeering claims in Indian country moving forward.

Transforming the Master’s Tools: The History of Courts of Indian Offenses

Aug 28, 2025 Bethany BergerNative Peoples LawAdd a Comment

Much of the history of federal Indian policy is a story of failed attempts to make Native peoples give up what makes them distinct. The complement of this history is the way Native peoples resisted each of these attempts, often using the implements of federal policy in doing so. Failure of U.S. treaty negotiators to recognize differentiation between tribal groups led some Native peoples to develop centralized political structures to coordinate their response. The devastation of federal boarding schools created a generation of Native people who formed the Society of American Indians, the first modern pan-Indian advocacy group, and communicated their resistance in ways familiar to non-Native policymakers and the public had to acknowledge. Mid-twentieth century relocation of Native people from their tribal homelands into American cities brought together people from many tribes to unite against Termination Policy. This is not a triumphal history—many lives, lands, and lifeways were lost in the process. But it underscores the ways that Native people have transformed the tools designed to destroy them to survive and fight back.

In Courts of Indian Offenses, Courts of Indian Resistance, Professor Fay adds to this history. She examines how Native people transformed the Courts of Indian Offenses created by the Department of Interior in the late nineteenth century. Interior created these courts for the express purpose of “civilizing” the Indians, directing them to punish the practices of medicine men, plural marriage, religious dances, and other “heathenish rites and customs.” Although their judges were tribal members, local federal agent appointed these judges and could remove them. Most tribes have now replaced these courts, and the old rules criminalizing tribal culture no longer exist. But five such courts still exist, serving sixteen tribes; their judges are still appointed by the federal government, and their current title, “CFR Courts,” reflects the federal regulations that govern them.

This history reached the Supreme Court in Denezpi v. United States, 596 U.S. 591 (2022). Denezpi considered whether a federal prosecution of a man that the Southern Ute Tribe’s CFR Court had already prosecuted violated the Double Jeopardy Clause. The majority of the Court held that it did not, relying on the dual-sovereignty doctrine to hold that because the federal and tribal laws criminalizing the conduct were “defined by separate sovereigns” the two courts “proscribe separate offenses.” Id. at 599. Justice Gorsuch, however, joined by Justices Sotomayor and Kagan, dissented, using the blatantly colonizing federal origins of the courts in support of a conclusion that CFR Courts prosecuted federal crimes. Id. at 612 (Gorsuch, J. dissenting).

Professor Fay examines archival records of these courts to argue that they were in fact “a means of maintaining tribal self-government by accommodating the assimilationist designs of federal bureaucrats.” Almost none of their convictions, she shows, were for the “heathenish” crimes they were created to police. The need to select judges with authority in tribal communities meant that the judges did not necessarily embrace assimilationist goals. More than one, for example, had multiple wives, although not being a polygamist was one of the few qualifications for such judges, and polygamy itself was one of the few crimes they were intended to police. Although the courts were created at the height of the assimilationist era in federal Indian policy, Professor Fay argues that compulsory education and military intervention played far larger roles in suppressing Indigenous tradition.

Of course, little of this history is new. As Professor Fay notes, the 1928 Merriam Report, The Problem of Indian Administration, noted the courts’ departure from federal commands in favor of local norms, William Hagan thoroughly plumbed this history in William Hagan’s Indian Police and Judges: Experiments in Acculturation and Control (1966), and an amicus brief in Denezpi of Federal Indian Law Scholars and Historians that I participated in summarized this history as well.

But Courts of Indian Offenses, Courts of Indian Resistance is the first standalone history of the courts since Hagan’s, and as Fay notes, Hagan regarded the courts as “vanguards of a more highly developed civilization.” Fay, quoting Hagan at 168. Fay further places the history in conversation with scholarship in other fields, including subaltern studies, the history of the administrative state, and Michael Lipsky’s examination of street level bureaucrats. Fay also painstakingly compiles available data regarding the courts to show exactly how few of their cases fell into the categories the Department of Interior sought to punish. Out of 1565 cases reflected in federal records, she finds, only 2 concerned dances or feasts, 28 concerned plural marriage, and 14 concerned medicine men. She also provides case studies of the Yakama, Pima, and Standing Rock Sioux courts. As Fay notes, the absence of prosecution of religious dances at Standing Rock is particularly significant because federal efforts to suppress the Ghost Dance there contributed to the 1890 massacre at Wounded Knee.

It is the case study section of the article that I hope Professor Fay will expand as she finalizes the article. Although the Pima case study includes tantalizing hints of the intersection of prosecutions with community politics, otherwise the article has few examinations of the actual cases the courts decide or the particular judges who decided them. Nor does it currently engage in the broader history and cultures of the three Indigenous communities she examines, which is important in understanding the roles of the courts in those communities. It would also be useful to consider the relationship between the courts and contemporary tribal courts; although few CFR Courts exist today, many present-day tribal courts had their origins in Courts of Indian Offenses. I hope to see more of that kind of examination in the published work.

But the article already makes an important contribution as a modern archival examination of failed efforts of assimilation. This kind of history is particularly relevant now, in the face of unprecedented efforts to destroy existing norms and institutions of the rule of law. May the example of tribal people, who took a tool intended to destroy them and used it to continue their traditions, inspire us in the days ahead.

Tribal Representation in American Democracy

Mar 18, 2025 Aila HossNative Peoples LawAdd a Comment

Nothing ruins my appetite for research and commentary on elections and politicians more than a presidential election. Civic duty and guilt keep me engaged, albeit begrudgingly. So, when my initial intrigue in picking up Professor Elizabeth Reese’s recent article, Tribal Representation, and Assimilative Colonialism, turned into captivation, I knew this piece was something I had to share.

Tribes have been exercising their authority as sovereign nations since time immemorial. Tribal sovereignty is an inherent authority that originates from a social contract between a government and its citizens. It predates the United States and colonial governments. Although colonization and genocide diminished Indigenous populations and impeded Tribal governments, Tribes persisted. Today, Tribes occupy a unique status in the United States. They maintain their nationhood while being part of the American family of governments—federal, state, local, and territorial.

The United States recognizes the sovereignty of 574 Tribal nations, each with distinct governing authority over their land and people. Tribes control over 100 million acres of land, a little over half as part of reservation and trust lands. Nearly 10 million people identify as American Indian or Alaska Native, although not all are Tribal citizens. Some Tribes have land bases and populations that are comparable to smaller states. American Indian and Alaska Native people are the most heavily regulated group under federal law.

And, yet, as Professor Reese astutely observes, there are no Indian states nor Tribal representation in the federal legislature. This article examines why this is the case. She also considers mechanisms for formal representation of Tribes within American democracy.

The article is elegant in its organization, with three discrete sections that build off one another. Section I outlines the long and racist history of the disenfranchisement of Native people in democratic processes. Native people were considered “uncivilized” and “savage.” Minority enfranchisement, it was said, would also threaten the political power of white majorities. Native people were not afforded U.S. citizenship until the passage of the Indian Citizenship Act of 1924.

Section I also chronicles the history of failed proposals for Native statehood. In the first treaty between the newly formed United States and a Tribal nation, the Treaty with the Delawares, 1778, a provision contemplated the Delaware Nation’s future membership in the confederation and representation in Congress. However, this never came to pass.

Two additional proposals concerned lands west of the Mississippi, an area later known as Indian Territory, where several Tribes would be relocated to following forced removal. Orchestrated by President Andrew Jackson in 1834, Congress introduced legislation establishing this land as a territory that would eventually be admitted as a state. The legislation was met with staunch opposition and failed. Another proposal involving converted Indian Territory into the State of Sequoyah. The Five Tribes with reservations in this area–Cherokee, Choctaw, Chickasaw, Seminole, and Muscogee–supported the proposal. Legislation in both the House and Senate failed.

Efforts to secure Tribal delegates to Congress have also been unsuccessful. The Treaty of New Echota, 1835, between the United States and the Cherokee Nation provides a Tribal delegate in the House of Representatives “whenever Congress shall make provision for the same.” Congress has not made such a provision despite calls from the Cherokee Nation to do so. Congressional legislation provided for Congressional delegates from the Five Tribes in Indian Territory. These, too, failed.

Professor Reese coins the term “assimilative colonialism” to describe this systemic exclusion of Tribal governments in US representative democracy. She defines it as “the practice of offering American political power–whether citizenship, the right to vote, or the possibility of statehood–only on terms of racial, cultural, or political erasure.”

In Section II, the article describes the status quo for Native participation in electoral politics today. Despite increased representation of Native people in government and Tribal successes in lobbying, Native people continue to be disenfranchised. Native and Tribal representation is particularly insufficient at the federal level, where Congress exercises plenary power, the ability to legislate over all matters concerning Tribes and Native people. Plenary power can and has been used to abrogate treaty rights, infringe on Tribal sovereignty, and limit Indigenous civil and human rights.

The status quo is insufficient to support Tribal and Indigenous interests in American political systems meaningfully, the article concludes. So, Section III considers “representative remedies” to better align Tribal representation in American democracy. It asks the reader to “open your imagination to alternatives to the status quo,” which would require significant structural changes to our political institutions. The article uses variations of the term “imagine” over ten times. I heeded the request in the context of the models considered in the article and some that were not.

I imagined what Tribal statehood could look like today and considered if such a model could exist without undermining Tribal nationhood. I imagined not only a Cherokee delegate in the House but hundreds of Tribal delegates, even voting ones! Even in the Senate! I couldn’t stop there. I brought back treatymaking. I imagined rewriting entire swaths of the Constitution, salivated at the thought of overruling problematic Indian law decisions from the Supreme Court, and drafted a dozen bills in my head.

My musings might not be what Professor Reese had in mind in her request for the reader to use their imagination. But her call for creativity in legal reform was refreshing. So much of legal scholarship, including my own, is anchored in pragmatism and incrementalism. Here’s to hoping Professor Reese’s excellent article encourages the legal academy to be more ambitious in future work.

Twisted Trust

Apr 26, 2024 Bethany BergerNative Peoples LawAdd a Comment

During Elouise Cobell’s campaign against federal management of Indian trust accounts, she learned that the U.S. did all sorts of things with the money. In the 1970s, for example, trust funds went to bailing out New York City and the Chrysler Company. Meanwhile, Native beneficiaries of the accounts couldn’t get payouts to rebuild destroyed homes or care for ill loved ones. And the records of who the accounts belonged to and what should be in them were out-of-date, kept in garbage bags and dilapidated boxes, destroyed by water and gnawed by rodents.

The history of federal Indian trust funds might be seen as simply another example of bureaucratic mismanagement and lack of concern for Indigenous property. But Emilie Connolly’s research shows that it is something more. In, Fiduciary Colonialism: Annuities and Native Dispossession in the Early United States, Professor Connolly examines the early history of such trust accounts to show that their creation and management was itself a tool of colonial domination. By holding and gradually paying out moneys owed to tribes, the United States could achieve expropriation without expensive wars, encourage tribal dependence, and invest the funds to finance further dispossession. As Connolly writes, “[a]nnuities and trust funds anchored . . . a mode of territorial acquisition and population management carried out through the expansion of administrative control over Native peoples’ wealth.” (P. 227.)

The United States began regular distributions to tribal nations in its founding years. Often promised perpetually to tribal treaty partners, these “annuities” borrowed from the pre-contact gift diplomacy through which Algonquian and Iroquoian peoples forged relationships of tribute and alliance. Indigenous recipients rejected the idea that these were payments for land cessions; they reflected obligations between allies, not compensation for territory. But even without agreement on their meaning, these distributions served U.S. goals by encouraging allegiance, undermining trade relationships with England and Spain, and introducing “civilizing” goods such as plows, spinning wheels, and European clothing into Indigenous communities.

After the war of 1812, annuities became more clearly tied to land cessions. Their amount increased and their nature changed: they were paid in cash rather than goods, and metal hard money–“specie”—rather than paper money. The shift to specie was significantly at Indigenous insistence, and tribal nations used it to buy livestock and build infrastructure that enriched the wealth of their communities. In the wake of the devastating removals west of the Mississippi beginning in the 1820s, tribes used annuity payments to rebuild, financing education and agriculture, health care and orphanages.

But annuities enriched others as well. At a time that hard money was more valuable and far rarer than regional paper currency, annuity distributions “became prizes, founts of high-powered money fought over by rival officials and local stakeholders.” (P. 241.) Federal Indian agents would lend out the specie under their control, pocketing the interest. Traders swarmed disbursement sites, receiving specie in exchange for goods and demanding it in exchange for debts they claimed tribes had incurred. The influx of cash also fueled frontier communities, encouraging settler migration to Indigenous homelands.

Fiduciary colonialism’s most perverse impact was in using tribal funds to finance tribal dispossession. Compensating tribal nations for land cessions by annuities rather than lump sum payment meant that the United States could acquire the land well before paying for it. Instead, it could sell the land to speculators and settlers, and use their payments (often far more than promised to tribes) to fund the annuity. And once the fund was in place, the United States could “invest” it in ventures of its own. Often these investments were in state issued bond funds used to build infrastructure, such as canals, railroads, and roads, that accelerated settler expansion. Feverish state borrowing led the state bond market to collapse in 1839, leaving states deeply in debt to tribal trust funds. Reflecting the value of obtaining Indigenous land by money rather than war, the federal government made up the shortfall itself.

Control over tribal funds also gave the U.S. crucial leverage over tribal people. The federal government used threats to terminate annuities to secure land cession treaties and extralegal dispossession. In later years, agents would withhold annuities from individual tribe members who refused to send their children to boarding school or otherwise participate in civilization schemes. And although the federal government had created annuities for its own purposes, it used these disbursements to portray Native people as dependent and in need of supervision. Forgetting that the funds represented Native property owed in compensation for Native land, the U.S. condemned the funds’ beneficiaries for wanting what they were owed.

Fiduciary Colonialism opens a window on the modes and means of colonial expropriation. It sheds new light on the federal government’s “trust relationship” with Indigenous peoples, revealing the origins of federal control in management of tribal moneys rather than tribal lands or welfare. Given this origin, the $176 billion that Cobell’s attorneys found had been misappropriated from trust funds is less surprising. Federal control of Native money was never designed to benefit Native people, but instead to benefit those who sought to displace them.