Inlay

So this dissent isn't a huge surprise since it says something we already know about what both men think. They both think plenary power (1) lacks constitutional footing and (2) is inconsistent with Tribal sovereignty. BUT.... 5/8

Which leaves me wondering 🤔 how much Thomas agrees with the idea these two points. I'd assume he would prefer to describe the doctrine as a mess without saying it's *because of prejudice* and that he'd say states, not tribes, should come out with more power. 7/8

Thomas also doesn't like plenary power. He's said so since a famous dissent in 2004 (US v. Lara). There's two big reasons for this. (1) There's not enough constitutional textual support for Congress having such a huge power. (2) Either tribes are sovereigns OR Congress has unlimited power. 4/8

A part of Federal Indian Law that Gorsuch doesn't like is the rule that Congress has "plenary power" over tribes to do allllmost anything it wants (good or bad). 3/8

Notably, this Gorsuch opinion tracks what I'd expect are *his answers* to why this happened (racism/prejudice) and what happens if plenary power falls (tribes have power to prosecute their own citizens unless they ask feds for help via treaty). Thus, it's interesting Thomas signed onto this. 6/8

This is one of those articles that makes me feel like my scholarship is really "seen" and doing an important thing. 🥹🩷 The University of Chicago Law Review | The Return to Autochthonous Law lawreview.uchicago.edu/print-archiv...

My husband is saying the same thing. I’m still only half way through and don’t see it yet. Reading slowed down now that I’m drowning in a pile of procrastinated clerkship letters.

Also...a new era of treatymaking! Wouldn't that be something! 8/8

Wohoo! And it’s about time… The Oneida Nation endowed a chair for an Indian Law scholar at HLS and they’ve been trying to fill it for DECADES. It took the incredible badass that is Tanner to break down that door finally. So proud and excited. This is a win for Indian Country and for the field!

I have a new short article out. My take on the last 50 years of Federal Indian Policy and the strange crossroads we are at. TLDR: Paternalism was bad. Reversing it--aka the fed. gov. incrementally giving up it's power--is hard. And it's not something Trump likes doing.