Making It Work: Tribal Innovation, State Reaction, and the Future of Tribes as Regulatory Laboratories

This Article examines a growing phenomenon: even as the Supreme Court has steadily contracted the scope of tribes’ regulatory authority, many tribes have in recent years passed innovative laws and ordinances, often extending well beyond any comparable initiatives at the state or local level. Recently, for example, the Navajo Nation passed a comprehensive taxation scheme designed to discourage the consumption of unhealthy food items and to subsidize the purchase of healthy ones—a scheme far more ambitious than the soda tax efforts that have stalled in many cities and states. Likewise, amid national controversy over marijuana legalization, the Flandreau Santee Sioux Tribe sought to open a “marijuana resort” in a state with strict anti-marijuana policies; meanwhile, other tribes have moved in the opposite direction, banning on-reservation use of drugs and alcohol even where it would be allowable under state law. Yet while we are accustomed to thinking of states as Brandeisian laboratories of democracy that pioneer innovations from which other jurisdictions can benefit, no ready model exists for how states and tribes should interact within the realm of regulatory experimentation. In practice, state reactions to tribal innovations have ranged from indifference to hostility to imitation, and few doctrines or practices exist to mediate issues that may arise from state-tribal regulatory conflict. Against this unsettled backdrop—which includes 2016’s inconclusive Supreme Court decision in Dollar General Corp. v. Mississippi Band of Choctaw Indians—this Article explores what contribution tribal regulation can and should make to the larger patchwork of regulatory innovation among states. It attempts, first, to survey some notable instances in which tribes have engaged in regulatory experimentation. It then considers the ways in which tribal innovation has affected and been affected by neighboring states, and the degree to which these effects resemble comparable dynamics in the interstate context. It closes by recommending several policies—among them tribal autonomy, clear delineation of tribal and state law’s respective territorial scope, and possible federal involvement—that may serve to foster a productive climate in which states and tribes can mutually influence and learn from each other

COVID-19 and Domestic Travel Restrictions

The strict controls that many jurisdictions, including most U.S. states, established to contain the COVID-19 pandemic have proven difficult to sustain over time, and most places are moving to lift them. Internationally, many plans to ease lockdowns have retained some form of travel restrictions, including the “green zone” plans adopted by France and Spain, which limit travel between regions with widespread community transmission of COVID-19 and those without it. By contrast, most U.S. states lifting shelter-in-place orders have opted to remove limits on movement as well. This Essay argues that this situation is unwise: it tends to create travel patterns that increase the spread of COVID-19 while at the same time hindering contact tracing and information gathering. While broad quarantines have a complicated and far from perfect record in the United States, more targeted measures are likely within states’ constitutional powers to impose, might be more palatable to the public, and could play a significant role in helping to contain the spread of COVID-19

Tribal Land, Tribal Territory

In the summer of 2020, two significant events brought into focus the relationship between Indigenous nations in the United States and the land they govern. First, in a controversy that made national headlines, several tribes in South Dakota clashed with Gov. Kristi Noem about their power to impose Covid-19-related checkpoints on state highways passing through Indian country. Borders have potent symbolism; by detaining drivers even briefly at theirs, the South Dakota tribes made plain that travelers were entering a separate jurisdiction in which different rules and policies applied. At the same time the checkpoint controversy was brewing, the Supreme Court decided the pathbreaking case McGirt v. Oklahoma. While only incidentally about tribal territorial jurisdiction, Justice Gorsuch’s opinion spoke directly to what it means for land to be tribal territory, suggesting that a tribe may retain jurisdiction over a reservation even if parts of it are sold to private owners. This would be an unremarkable statement in any other context, but it is near-revolutionary in federal Indian law, where Supreme Court–created doctrine has left tribes with very little ability to regulate non-Indians on fee land. This Article takes these two developments as a starting point for reflecting on the relationship between tribal land and tribal territory. It aims to undertake a comprehensive account of the varied strands of doctrine the Court has put forth on this subject, including the limits on tribal regulatory authority over fee land under Montana v. United States, the ever-shifting right to exclude that the Court has characterized in numerous and inconsistent ways, and the uncertain relationship between the two. After surveying current doctrine, the Article suggests a reimagining of both Montana and the right to exclude in a way that would facilitate a return to the territorial control tribes traditionally exercised

Novel Perspectives on Due Process Symposium: Rights, Immunities, and Sovereigns

This response first looks at the historical understanding of foreign sovereign immunity and the ways in which it should inform our reading of Article III. It then considers the role that sovereign immunity protections for foreign nations currently play. It closes with a suggestion that—while the sovereign immunity regime is largely adequate to protect other nations’ interests—Professor Wuerth’s insights nonetheless have a role to play in our understanding of cases involving foreign sovereigns

What Personal Jurisdiction Doctrine Does -- And What it Should Do

Commentators have routinely noted the complexity, opacity, and multiple functions of U.S. personal jurisdiction doctrine. Yet underlying this comparative chaos are two important concerns. Both commentary and Supreme Court cases have long recognized that a court\u27s assertion of power over a particular defendant and case may have two undesirable consequences. First the burden on the defendant of having to appear before a certain type of court or in a particular location may be unacceptably high. Second a court\u27s jurisdictional overreaching may encroach upon the sovereignty of other states or nations and in so doing, may foster uncertainty about which sovereign\u27s substantive standards apply to particular conduct. Personal jurisdiction, to some extent, addresses both of these issues. But with respect to both goals, it has competition. Multiple protections, including venue and forum non conveniens, help to ensure that defendants are not unfairly burdened by litigation. An even greater variety of doctrines, such as dormant commerce clause protections, choice-of-law restrictions, and limits on punitive damages, restrict the ability of states to regulate distant conduct and thereby exceed their sovereign boundaries. In light of these additional protections, this Article suggests reorienting personal jurisdiction toward functions not well served by other doctrines, and proposes three possible goals that meet this standard providing redundant protections to foreign defendants, screening out cases likely to create difficult questions of choice-of-law constitutionality, and adding the factor of purposeful availment to the analysis of defendant fairness. Surveying the four personal jurisdiction cases the Court has recently decided, this Article finds that they have addressed the first of these goals to some extent, but have slighted the second and third