Michael Sanders (independent) has posted Original Understandings of Tribal Sovereignty: Native Americans in Justice Gorsuch's Jurisprudence (39 pages) on SSRN. Here is the abstract:
This Essay examines Justice Neil Gorsuch's jurisprudence in federal Indian law, arguing that it reflects a principled and historically-grounded application of originalism and textualism. Within the framework of these interpretive methods, this essay argues that Justice Gorsuch's jurisprudence in federal Indian law cases has dutifully applied originalist tools to buttress the inherent sovereignty of Native American Tribes. In contrast, the broader Supreme Court has invoked the same methods to undermine tribal sovereignty and disregard historical indicia about the limits of congressional plenary power and the depth of tribal independence. Divided into three parts, the Essay first explores how the Framers originally understood the legal and political status of Indian Tribes, drawing from contemporary legal theory and the law of nations. Next, it puts Justice Gorsuch’s recent opinions in conversation with that historical understanding. Finally, it contends that federal courts must adopt Gorsuch’s more expansive, historically-conscious analysis of tribal sovereignty. By doing so, they would be more faithful not only to the interpretive methods that they profess should govern judicial analysis but also to the Constitution itself. In the process, they will reinvest Tribes with the inherent sovereignty that the Framers themselves believed Tribes to possess.
Posted at 6:04 AM