Abstract The Fifth Amendment equal protection doctrine has never been effective at curtailing racialized harm in immigration law. While not expressly drafted to address racially differential impact, the administrative law doctrine known as arbitrary and capricious review has the potential to enable courts to set aside discretionary immigration enforcement decisions as arbitrary and capricious...
The Class Action After Trump v. CASA
Abstract To every court to consider its merits, Donald Trump’s order purporting to end birthright citizenship for children born to undocumented parents violates the Fourteenth Amendment. But in Trump v. CASA, the U.S. Supreme Court vacated a “universal” injunction that had shielded all children from the order’s enforcement. The federal courts had issued dozens of universal injunctions before...
The Sovereignty Problem in Federal Indian Law
Abstract There is a sovereignty problem in federal Indian law—namely, that the federal government’s sovereign defenses prevent tribal nations and individual Indian people from realizing justice in the courts. Often, compelling tribal and Indian claims go nowhere as the judiciary defers to the interests of the United States, even where Congress has expressly stated its support for tribal interests...
Homelands Not Graveyards
Abstract Within the last five years, the U.S. Supreme Court has taken up several transformative cases affecting Native nations and federal Indian law jurisprudence. The Supreme Court’s decision in Arizona v. Navajo Nation is no different. This Article examines that decision and situates it within that legal history as well as the realities of present-day water resource availability. While recent...
Tribal Law Innovations in Native Governance
Abstract This Article examines how tribal law has become a critical tool in advancing Native self- determination and good governance across Indian country. I analyze three key areas of innovation: the incorporation of the United Nations Declaration on the Rights of Indigenous Peoples into tribal legal systems, the rapid expansion of tribal laws protecting cultural property, and the implementation...
"The Seed is the Law": Creating New Governance Frameworks for Indigenous Heirloom Seeds and Traditional Knowledge
Abstract The United Nations World Intellectual Property Organization (WIPO) held a diplomatic conference in May 2024 where participants adopted a historic new treaty on Intellectual Property, Genetic Resources and Associated Traditional Knowledge. The treaty is intended to improve the patent system by preventing erroneous patents that are derived from genetic resources and associated knowledge...
Native Reproductive Self-Determination
Abstract Like the overall well-being of Indigenous peoples, Native reproductive health has been deeply impacted by the direct and collateral consequences of settler colonialism. Today, Natives experience some of the most dire reproductive health disparities. Unlike other health care systems, however, Native health care is sui generis. The federal government has treaty, trust, and statutory...
Indigenous Peoples in International (Treaty) Diplomacy
Abstract International diplomacy has traditionally been considered the exclusive prerogative of states, who engage with each other on matters of peace, conflict, and trade with an eye to national interests and global wellbeing. This is one of a series of works considering “Indigenous Diplomacy”—a practice in which Indigenous Peoples engage with states, as well as other Indigenous Peoples, groups...