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Abstract

The United States and every federally recognized tribal nation originally entered into a sovereign-to-sovereign relationship highlighted by the duty of protection, an international customary law doctrine in which a larger, stronger sovereign, America in this case, agrees to “protect” the small, weaker sovereign, in this case, tribal nations. America agreed to this in exchange for massive, occasionally unquantifiable amounts of land and resources, as well as the power to control the external sovereign relations of the protected sovereign. The smaller sovereigns received protected reservation lands, hunting and fishing rights, small cash infusions, and the vague promise of protection. What tribal nations have received so far is a pittance compared to the value of their consideration. Justice Gorsuch has noted that tribal nations in Washington gave up millions of acres in exchange for “promises.” Those promises must mean something. I call those promises the dark matter of federal Indian law. The duty of protection owed by the United States to tribal nations is much like dark matter. The agreements that established a sovereign-to-sovereign relationship provided for specific details about that relationship. But most agreements are sparse, leaving open most of the details. That’s the dark matter of Indian law. This Article argues that this duty of protection is law and that the judiciary has an obligation to enforce aspects of the duty of protection as understood by both tribal nations and Congress. The Article begins by describing this duty as understood by tribal nations at the time of the origination of the duty and now. The Article then turns to how Congress and the Department of the Interior understand this duty, at least since the start of the tribal self-determination era in the 1970s, and how the Department of Justice often undermines that understanding. Then, the Article explains that the dark matter of federal Indian law is the duty of protection, that the federal obligations to tribal nations and individual Indians is real, and that the duty of protection is enforceable. Finally, the Article shows how the United Nations Declaration of the Rights of Indigenous Peoples is a useful tool judges can use in adjudicating the scope of the unstated parts of the duty of protection.

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