Seth Davis

Document Type

Article

Disciplines

Indigenous, Indian, and Aboriginal Law

Abstract

There is no nondelegation doctrine for Native nations, nor should there be one even if the Supreme Court revives the nondelegation doctrine for federal agencies and private parties. The Court has never struck down a statute on the ground that it delegated legislative power to a Native nation. Instead, it has held that Congress may recognize the sovereignty of Native nations and that their independent authority sustains statutes that rely upon Native governments to implement policy goals that they share with the United States. The Court’s deferential approach is consistent with the rational-basis standard of review that applies to Indian affairs statutes. The jural argument against a nondelegation doctrine is that the sovereignty of Native nations distinguishes them from federal agencies and private parties. The functional argument against a nondelegation doctrine is twofold. First, the functionalist justifications for restricting Congress’s authority to rely upon Native nations to implement shared goals are unconvincing on their own terms. Second, a robust nondelegation doctrine would undermine Congress’s capacity to fulfill the federal government’s obligations to support tribal self-government. This is the answer to the most trenchant critique of the Court’s jurisprudence concerning delegation and Native nations.

Download

Share

COinS