Bradley Stevens (University of Oklahoma) has posted Laboratories of Sovereignty: Tribal Power as the Substrate of Institutional Learning on SSRN. Here is the abstract:
When federal law does not reach tribal nations, something valuable happens: an experiment begins. This Comment argues, for the first time, that tribes operate as regulatory laboratories when the inapplicability of federal statutes and regulations to tribes, whether by inherent sovereignty, sovereign immunity, or the canons of construction, functions as a granular repeal of those laws within Indian country. Just as states serve as laboratories of democracy under Justice Brandeis’s famous formulation, tribes serve as “Laboratories of Sovereignty,” modeling what the American legal system looks like when a specific federal baseline is absent and generating policy data that no state, bound by the Supremacy Clause, can replicate. The Comment tests this thesis across three increasingly contested areas of tribal sovereign authority: criminal law, where inherent sovereignty operates as replacement; civil statutory law, where the circuit split over statutes of general applicability leaves employment, arbitration, and trademark regimes optional; and administrative law, where Loper Bright may have quietly expanded these gaps by requiring courts to construe agencies’ organic statutes anew. In each laboratory, tribes have responded with generative, divergent, and diagnostic policy experiments, from peacemaking courts and banishment sentencing to just-cause termination regimes and environmental standards exceeding the federal baseline. To preserve these laboratories, the Comment argues that courts should adopt the Tenth Circuit’s clear statement rule over the Ninth Circuit’s Coeur d’Alene framework, and extend it consistently to organic statutes, transforming tribal sovereignty from a doctrinal battleground into the substrate of institutional learning.
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