M. Henry Ishitani (Yale University – Law School; University of Tulsa College of Law; Yale University – Department of History) has posted Making Sense of Federal Recognition on SSRN. Here is the abstract:
This Article offers the first comprehensive account of federal recognition power—the authority to recognize the sovereignty of other states. The recognition of foreign sovereigns undergirds international law. Likewise, federal recognition of tribal sovereignty serves as the bedrock of federal Indian law. Yet these two recognition powers are in apparent conflict. In 2015, Zivotofsky v. Kerry held that the President has the “exclusive” authority to recognize foreign governments and the states they rule. Meanwhile, Congress asserts final authority over tribal recognition, merely delegating some of this power to the Bureau of Indian Affairs. Both foreign and tribal recognition powers face serious critiques, and when viewed together, the discrepancy between presidential and congressional supremacy appears to undermine the legitimacy of both doctrines.
This Article resolves this conflict. It harmonizes the federal government’s foreign and tribal recognition powers by articulating a conception of recognition informed by the third sovereign type: the states. Federal recognition of the states has been wholly overlooked by the literature, and it holds the key to doctrinal coherence. While federal recognition of the states is not often a live issue in American politics, it was inescapable in the most important episode of our constitutional history: Reconstruction. This Article distills a comprehensive account of federal recognition power in two principles. First, recognition follows reception. In other words, the power to recognize a sovereign is located wherever the Constitution commands that the representatives of the sovereign government shall be received. Second, recognition power reaches not only the governments, but also the territories and peoples of the extra-federal sovereigns.
These two principles stay constant across foreign, state, and tribal recognition. But they have radically different consequences for federal power in relation to each sovereign type, with major implications for Congressional control over presidential elections and plenary power in Indian affairs.
Highly Recommended!
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