New Scholarship Arguing PL 280 is Unconstitutional

Kyle Conway has published “Inherently or Exclusively Federal: Constitutional Preemption and the Relationship Between Public Law 280 and Federalism” in the University of Pennsylvania Journal of Constitutional Law (SSRN link). Here is the abstract:

The basic principles of Indian-law jurisprudence often appear disconnected with basic principles of American constitutional law. Indian law, however, has a special significance to important issues of state and federal power. This Article seeks to build on the work of prior scholars who have sought to connect Indian law to American constitutional values.

Public Law 280 is a federal law that gives states control over certain aspects of Indian affairs that were traditionally within the scope of the federal government. This Article argues that Public Law 280 is unconstitutional under a doctrine of constitutional preemption. Constitutional preemption is grounded in the system of overlapping sovereignty that forms the structure of the Constitution and should be understood as prohibiting the federal government from delegating inherently and exclusively federal powers to the states. The power to manage Indian affairs is entrusted exclusively to the federal government, and Congress cannot constitutionally delegate it to the states.

The constitutional difficulties raised by Public Law 280 are particularly relevant in an era when issues of federalism are at the forefront of legal discussion. It is often accepted that courts may limit the federal government’s authority to exercise powers reserved to the states, but we should also take seriously the idea that courts may limit the states’ authority to exercise powers reserved to the federal government.


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