Courts of the Conqueror: A Framework for Tribal Standing

Abstract

The Supreme Court has recognized that states are entitled to “special solicitude” in the standing analysis, which lightens their burden of demonstrating the constitutionally required elements of injury, causation, and redress-ability when they bring a suit against the federal government. While some lower federal courts have begun to extend similar solicitude to tribal plaintiffs, existing scholarship largely justifies this extension based on theories of implicit divestiture of tribal sovereignty to the federal government. By relying on these theories, scholars would require tribal plaintiffs to endorse centuries of problematic doctrine that undermine tribal self-government and autonomy in order to bring their claims in federal court. Instead, this article argues for a broader interpretation of the Court’s special solicitude case law that would extend to circumstances in which the structure of the Constitution inhibits a government plaintiff from seeking redress for its injuries outside of the federal courts. This framework would apply equally to states — whose regulatory authority may be preempted by the Supremacy Clause — and Indian tribes — who have limited ability to enter regulatory agreements with states to address their grievances in light of the Constitution’s centralization of authority over Indian relations in the federal government. Re-framing the standing inquiry in this way is one step toward decolonizing federal Indian law, enabling Indian tribes to use the American legal system without having to embrace the degrading nineteenth-century precedents that laid the foundations for the modern landscape of federal Indian law. A grant of special solicitude to Indian tribes will also expand tribal access to federal courts, allowing judicial review to serve as a greater check on the expansive power that Congress wields over Indian affairs under the plenary power doctrine and increasing the ability of tribes to vindicate their rights and interests in the “courts of the conqueror.”