Article

History and the School Prayer Cases

In a series of two decisions known as the School Prayer Cases, the Supreme Court famously held that the Establishment Clause forbids state-sponsored prayer in public schools—even where the government provides opt-outs for dissenters. Yet subsequent legal developments have rendered those decisions unstable. And with the Court’s recent turn to “historical practices and understandings,” many question whether the School Prayer Cases can possibly survive.

It is too soon to tell where the Court’s renewed focus on Founding-era history might lead. But this Article contends, contrary to both some originalist Justices and their critics, that a focus on history does not spell the end of the School Prayer Cases. On the contrary, it may well place those decisions on firmer ground.

In a recent opinion, the Supreme Court observed that state-sponsored school prayer bears some relation to at least one “hallmark” of Founding-era establishments—namely, laws requiring citizens to attend worship in the established church. Contrary to what some Justices have suggested, however, the problem with these Founding-era laws was not that they lacked exemptions for dissenters. Rather, for the Founding generation, laws mandating attendance at state-sponsored worship were objectionable, opt-outs or no, because such laws exceeded the government’s rightful authority. On this view, the key feature of the School Prayer Cases is not the presence or absence of exemptions or proof of individual coercion. Instead, it is the government’s claimed right to mandate attendance at worship in the first place, no matter how tolerant the scheme. And understanding that point may offer important insight into larger questions about the propriety and limits of government-sponsored prayer, inside as well as outside of public schools.

Introduction

Speaking to a crowd on the morning of June 25, 1962, Justice Hugo Black’s voice quaked with emotion.1 1.See Roger K. Newman, Hugo Black: A Biography 522–23 (1994). The incident also appears in Andrew Koppelman, Defending American Religious Neutrality 67–68 (2013).Show More As he cradled a paper that shook slightly as he spoke, Justice Black uttered words that would become immortal: “The Establishment Clause thus stands as an expression of principle . . . that religion is too personal, too sacred, too holy, to permit its ‘unhallowed perversion’ by a civil magistrate.”2 2.Engel v. Vitale, 370 U.S. 421, 431–32 (1962) (quoting James Madison, Memorial and Remonstrance Against Religious Assessments, in 2 The Writings of James Madison 183, 187 (Gaillard Hunt ed., 1901)).Show More With that sentence and several that followed, Justice Black announced to the country that—contrary to most people’s expectations—the Establishment Clause forbade requiring public-school students to say a brief prayer during the school’s morning exercises.3 3.See Corinna Barrett Lain, God, Civic Virtue, and the American Way: Reconstructing Engel, 67 Stan. L. Rev. 479, 507–14 (2015) (describing the outcry over Engel).Show More “[T]he right of the people to pray in their own way,” Justice Black added extemporaneously, “is not to be controlled by the election returns.”4 4.Anthony Lewis, Supreme Court Outlaws Official School Prayers in Regents Case Decision, N.Y. Times, June 26, 1962, at 16.Show More

So was the birth of the two decisions that became the Supreme Court’s famous School Prayer Cases. In Engel v. Vitale, the opinion containing Justice Black’s immortal words, the Court held that a New York program requiring students to begin the day with a formulaic, government-composed prayer violated the Establishment Clause.5 5.370 U.S. at 422, 436.Show More A year later, in School District of Abington Township v. Schempp, the Court doubled down on that holding by asserting that, whether government composes the prayer or not, requiring government-led prayer and devotional Bible reading in public schools violates the Establishment Clause.6 6.374 U.S. 203, 205 (1963).Show More And most importantly, in both cases, the Court expressly rejected the argument that excusing objecting students removed the constitutional problem.7 7.Engel, 370 U.S. at 430; Schempp, 374 U.S. at 224–25.Show More

Scholars have generally supported the School Prayer Cases, albeit with some notable dissents.8 8.For examples of scholarship praising the School Prayer Cases or building on their rationales, see Stephanie H. Barclay, The Religion Clauses After Kennedy v. Bremerton School District, 108 Iowa L. Rev. 2097, 2107–09 (2023); William P. Marshall, The Constitutionality of School Prayer: Or Why Engel v. Vitale May Have Had It Right All Along, 46 Cap. U. L. Rev. 339, 341–42 (2018); Ira C. Lupu & Robert W. Tuttle, Secular Government, Religious People 119–22 (2014); Koppelman, supranote 1, at 67–71. For a provocative dissent, see generally Steven D. Smith, Constitutional Divide: The Transformative Significance of the School Prayer Decisions, 38 Pepp. L. Rev. 945 (2011) (arguing the School Prayer Cases deepened divides in America by constitutionalizing secularism).Show More But as a matter of so-called “popular constitutionalism,” the School Prayer Cases are some of the more controversial decisions in Supreme Court history.9 9.See, e.g., Bruce J. Dierenfield, The Battle Over School Prayer: How Engel v. Vitale Changed America, at vii (2007) (claiming Engel was “greeted with more shock and criticism than Dred Scott v. Sandford”); Lain, supra note 3, at 507–14 (similar). For more on “popular constitutionalism,” see generally Larry D. Kramer, The People Themselves: Popular Constitutionalism and Judicial Review (2004).Show More Following Engel, governors in every state but one supported a resolution to overturn the decision.10 10.Lain, supra note 3, at 512.Show More More than half of Americans disapproved of the outcomes when Engel and Schempp were decided,11 11.Id. at 482, 522 n.271 (discussing contemporaneous polling).Show More and polling indicates similar disagreement persists today.12 12.As of 2019, “roughly four-in-ten teens (including 68% of evangelical Protestant teens) who go to public school say they think it is ‘appropriate’ for a teacher to lead a class in prayer.” For a Lot of American Teens, Religion Is a Regular Part of the Public School Day, Pew Rsch. Ctr. (Oct. 3, 2019), https://www.pewresearch.org /religion/2019/10/03/for-a-lot-of-american-teens-religion-is-a-regular-part-of-the-public-school-day/ [https://perma.cc/VHJ8-XFRP].Show More Members of Congress have introduced no fewer than ten bills to strip the Supreme Court of jurisdiction over the topic of school prayer, not to mention hundreds of proposed constitutional amendments.13 13.See Cong. Rsch. Serv., School Prayer: The Congressional Response, 1962–1998, at 1–2 (1998).Show More And just last year, New York City Mayor Eric Adams openly lamented the School Prayer Cases, insisting that “[w]hen we took prayers out of schools, guns came into schools.”14 14.Dana Rubinstein, Adams, Discussing Faith, Dismisses Idea of Separating Church and State, N.Y. Times (Feb. 28, 2023), https://www.nytimes.com/2023/02/28/nyregion/eric-adam‌s-religion-church.html [https://perma.cc/6UTX-F5V2].Show More

In some measure, of course, disagreement about government-led school prayer is predictable. Since the mid-nineteenth century, public schools have played an important role in instilling moral values in children through government intervention—a project nearly always rife with controversy.15 15.For one thoughtful perspective on this problem, see generally Noah Feldman, Non-sectarianism Reconsidered, 18 J.L. & Pol. 65 (2002).Show More But the School Prayer Cases are about more than that. They are also part of a larger set of questions about the propriety of government-sponsored religious observance. Can government officials lead citizens in prayer? If not, what about examples like prayers at presidential inaugurations or prayers by military chaplains? If so, what are the limits government cannot transgress? As it turns out, those questions are far from settled. In fact, they are very much up for debate.

The puzzle comes about this way. In recent opinions, the Supreme Court has emphasized that, from now on, the Establishment Clause must be interpreted primarily in light of “historical practices and understandings” as evidenced by “the Founding Fathers.”16 16.Kennedy v. Bremerton Sch. Dist., 142 S. Ct. 2407, 2428 (2022) (quoting Town of Greece v. Galloway, 572 U.S. 565, 576–77 (2014)); Am. Legion v. Am. Humanist Ass’n, 139 S. Ct. 2067, 2087 (2019) (quoting Town of Greece, 572 U.S. at 576) (same).Show More And in modern cases involving government-sponsored religious observance including the School Prayer Cases, the Court has relied on two theories to justify its decisions: one about government religious speech, and a second based on what the Court has called “indirect coercion.”17 17.See infra Sections I.A, I.B (describing these theories).Show More Yet, at least arguably, neither theory sits comfortably with the Court’s more recent focus on Founding-era history.

The government-speech theory holds that the Establishment Clause forbids government from engaging in official religious speech—that is, speech that serves clearly devotional purposes.18 18.See Sch. Dist. of Abington Twp. v. Schempp, 374 U.S. 203, 223–24 (1963); Santa Fe Indep. Sch. Dist. v. Doe,530 U.S. 290, 305–08 (2000). The government-speech theory became closely related to the three-part test first articulated in Lemon v. Kurtzman,403 U.S. 602, 612–13 (1971).Show More Yet the Court never explained how this rule was consistent with long-accepted practices like legislative prayer, thanksgiving proclamations, or prayers by military chaplains or at presidential inaugurations.19 19.See infra Section I.A (discussing these practices).Show More And subsequently, the Court has upheld these practices—most notably, legislative prayer—while rejecting the idea that the Constitution forbids government from speaking religious messages.20 20.Marsh v. Chambers, 463 U.S. 783, 787–92 (1983); Town of Greece, 572 U.S. at 575–85; see also id. at 616 (Kagan, J., dissenting) (disagreeing on the outcome in Town of Greece while agreeing with Marsh’s decision “upholding [a] tradition of beginning each session with a chaplain’s prayer”).Show More Judged against history and precedent, the government-speech rationale faces significant hurdles.

A similar problem persists with respect to the coercion rationale. In Lee v. Weisman, the Court held that a public school district violated the Establishment Clause by including government-sponsored prayer at a middle school graduation.21 21.505 U.S. 577, 599 (1992).Show More Drawing on another strand of the original School Prayer Cases, Justice Kennedy insisted that the fundamental problem with government-led school prayer is the “indirect coercion” students face from “peer pressure.”22 22.Id.at 592–93.Show More But Justice Kennedy’s expansive theory of coercion flowed from modern psychology, not Founding-era history.23 23.Id. at 593–94.Show More Moreover, Justice Kennedy did not explain why the indirect-coercion rule does not render many other common practices unconstitutional. To take just one example, if opt-outs cannot dispel the coercion inherent in government-led school prayer, why doesn’t the same conclusion follow as to requiring students to recite the Pledge of Allegiance, or requiring participation in some other school activity where a student objects on free-speech grounds?24 24.For the classic exposition of this problem, see generally Abner S. Greene, The Pledge of Allegiance Problem, 64 Fordham L. Rev. 451 (1995).Show More If peer pressure persists here too, are all these activities unconstitutional, opt-outs or no?

In a well-known dissent, Justice Scalia offered a different perspective. Pointing to various Founding-era practices associated with religious establishments—especially church-attendance laws and compulsory tithes—Justice Scalia agreed that the Establishment Clause forbids “coerc[ing] anyone to . . . participate in religion or its exercise.”25 25.Lee, 505 U.S. at 640–42 (Scalia, J., dissenting) (quoting id. at 587 (majority opinion)).Show More But according to Justice Scalia, history indicated that the Founding generation endorsed nothing like indirect coercion, much less a ban on government religious speech. Instead, they followed a much narrower principle: “The coercion that was a hallmark of historical establishments of religion was coercion of religious orthodoxy and of financial support by force of law and threat of penalty.”26 26.Id.at 640.Show More

Justice Scalia’s position carries with it a radical implication. If the Establishment Clause condemns only government-induced religious activity involving “force of law and threat of penalty,” it is hard to see how the School Prayer Cases qualify. Yes, requiring students to attend school or participate in morning exercises that include prayer may involve commands issued “by force of law.”27 27.See, e.g., Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 47 (2004) (Thomas, J., concurring in the judgment) (observing that “[s]tudents are actually compelled . . . by law . . . to attend school” (citation omitted)).Show More But so long as these commands contain opt-outs for dissenters, they arguably do not involve any real “threat of penalty.” In Lee, Justice Scalia hinted at this possibility, indicating that allowing children to opt out of government-led school prayer might “suffice[] to dispel the coercion resulting from . . . mandatory attendance.”28 28.Lee, 505 U.S. at 643 (Scalia, J., dissenting).Show More Justice Thomas has since made a similar point, insisting that unless an objector can produce evidence of “actual legal coercion” as opposed to “peer pressure,” there is no basis to complain.29 29.Elk Grove, 542 U.S. at 47, 52–53 (Thomas, J., concurring in the judgment); see also Van Orden v. Perry, 545 U.S. 677, 693 (2005) (Thomas, J., concurring) (“The Framers understood an establishment ‘necessarily [to] involve actual legal coercion.’” (quoting Elk Grove, 542 U.S. at 52 (Thomas, J., concurring in the judgment))); Town of Greece v. Galloway, 572 U.S. 565, 610 (2014) (Thomas, J., concurring in part and in the judgment) (similar).Show More

With this backdrop, the heart of the controversy now comes fully into view. In Kennedy v. Bremerton School District, the Supreme Court recently held that a public school district violated the Constitution by punishing a high school football coach for praying on the field after several games, and it rejected the idea that the Establishment Clause condemned the coach’s actions.30 30.142 S. Ct. 2407, 2415–16 (2022).Show More In doing so, the Court explicitly abandoned Lemon v. Kurtzman and, by implication, most of the original government-speech rationale for the School Prayer Cases.31 31.Id.at 2427.Show More The majority also rejected the argument that accommodating the coach’s religious exercise coerced students, mainly because the coach’s prayers took place after games concluded, when students were otherwise occupied and staff engaged in their own private activities.32 32.Id.at 2428–32.Show More

In Kennedy, the Court carefully avoided taking a position on which version of coercion—Justice Kennedy’s or Justice Scalia’s—best comported with “the original meaning of the Establishment Clause.”33 33.Id.at 2429.Show More But the majority’s focus on record evidence—and especially its use of a district court quotation observing there was “no evidence that students were directly coerced”—struck the dissenters as capitulating to Justice Scalia’s position.34 34.Id. (emphasis added); see also id. at 2451 (Sotomayor, J., dissenting) (“The Court’s suggestion that coercion must be ‘direc[t]’ . . . is contrary to long-established precedent.” (alterations in original)).Show More In their view, the coach’s past practice of occasionally praying with students along with the presence of peers created clear “social pressure.”35 35.Id.at 2451–52 (Sotomayor, J., dissenting) (quoting Lee v. Weisman, 505 U.S. 577, 594 (1992)).Show More By ignoring that, the dissenters insisted, the majority portended a change in the law. Several scholars have suggested the same thing.36 36.See, e.g., Justin Driver, Three Hail Marys: Carson, Kennedy, and the Fractured Détente Over Religion and Education, 136 Harv. L. Rev. 208, 239 (2022)(suggesting that Kennedy “comes perilously close to installing the understanding of coercion that Justice Scalia’s dissenting opinion [in Lee] advanced”); Ira C. Lupu & Robert W. Tuttle, Response, Kennedy v. Bremerton School District—A Sledgehammer to the Bedrock of Nonestablishment, Geo. Wash. L. Rev. on the Docket (July 26, 2022), https://gwlr.org/kennedy-v-bremerton-school-d‌istrict-a-sledgehammer-to-the-bedrock-of-nonestablishment [https://perma.cc/F46M-BKLS] (suggesting that after Kennedy, “[p]rayer in schools may soon . . . requir[e] the provision of opt out rights to avoid compelled speech but no limitations on what schools may sponsor”). Others have gone even further. See, e.g., Alexander Tsesis, Government Speech and the Establishment Clause, 2022 U. Ill. L. Rev. 1761, 1801–02 (suggesting that in Kennedy “a majority of the Court adopted [Justice Scalia’s] flawed test”).Show More

The dissenters in Kennedy are probably right that the law of the School Prayer Cases may be in flux. But this Article argues that both sides of the debate are wrong in assuming that a historical approach to the Establishment Clause yields the end of the School Prayer Cases. Specifically, this Article argues that a more nuanced understanding of Founding-era history might well place those cases on firmer ground, and for reasons that Justice Scalia simply overlooked. And in so doing, this Article also suggests this same history may also help illuminate other questions surrounding government-sponsored prayer.

Begin with the most basic point. Individual justices and scholars have long noted that compulsory public education of the kind recognizable to us today did not exist at the Founding.37 37.See Sch. Dist. of Abington Twp. v. Schempp, 374 U.S. 203, 238–39 & n.7 (1963) (Brennan, J., concurring) (noting that in early America, “education was almost without exception under private sponsorship and supervision” until at least “the first quarter of the nineteenth century”); see also infra Section III.B.Show More But as the Kennedy majority hinted, members of the Founding generation were well-acquainted with a practice that resembles government-mandated school prayer in several relevant respects—namely, laws requiring attendance at worship services in state-approved churches.38 38.Kennedy, 142 S. Ct. at 2429 (noting that “government may not, consistent with a historically sensitive understanding of the Establishment Clause, ‘make a religious observance compulsory’ [or] . . . ‘coerce anyone to attend church’” (quoting Zorach v. Clauson, 343 U.S. 306, 314 (1952))).Show More Like mandatory school prayer, those laws required that citizens attend state-sanctioned religious instruction and worship. Yet contra Justice Scalia, it is inaccurate to say that Founding-era Americans viewed such laws as permissible so long as they contained opt-outs that might “dispel the coercion.”39 39.Lee, 505 U.S. at 643 (Scalia, J., dissenting).Show More From the late seventeenth century onward, mandatory church-attendance laws throughout the American colonies contained exemptions for religious dissenters. But supporters of religious liberty roundly rejected those schemes across different states. When it came to mandatory attendance at state-sponsored worship, opt-outs simply were not enough.40 40.See infra Section II.B.Show More

Yet if “direct coercion” was not the fundamental problem with laws mandating formal worship, what was? Here, members of the Founding generation offered a variety of answers. But in the main, their answers focused not on individual coercion, but instead on the limits of government power. On this theory, mandating attendance at state-sponsored worship was objectionable—opt-outs or no—because government simply had no authority to command a religious observance through law.41 41.See id.Show More As one contemporary writer put it, citizens had “no right to invest their Legislature with [this] power,” because “[m]atters of religion lie between God and their own consciences, to whom each man is to give account for himself.”42 42.Philanthropos, Number IV, Indep. Chron. & Universal Advertiser (Bos.), Apr. 6, 1780.Show More And as I explain in more detail below, understanding that point potentially offers several important insights for clarifying the law today.43 43.See infra Part IV.Show More

First and most basically, understanding prominent Founding-era objections to mandatory church-attendance laws provides at least some reason to think the Court’s famous School Prayer Cases were correct, though not for the reasons the Court has said. As initially formulated, the School Prayer Cases rested on what have become uncertain foundations—an increasingly outmoded theory of government religious speech on the one hand, and a nebulous theory of coercion on the other. But a reexamination of the Founding-era evidence offers a different way forward. From this perspective, the problem with teacher-led prayer in public schools is not that government expression must be strictly secular, nor that special rules about coercion apply to religion but nothing else. Instead, the problem is that the legal mechanisms supporting mandatory school prayer are analogous to mandatory church-attendance laws in the most relevant respects, and arguably violate the Establishment Clause for the same reasons.

Where government mandates both attendance at public school and attendance at official classroom activities—including daily prayer or devotional Bible reading—it has created a coercion-backed rule requiring attendance at state-sponsored worship. Moreover, as with Founding-era church-attendance laws, such programs necessarily assume a governmental power to command a religious observance, even if they might also provide opt-outs for dissenters. To be sure, the Founding generation never confronted this precise problem. And as explained more below, the complex history of public schools makes the issue more complicated still.44 44.See infra Section III.B.Show More Nonetheless, a proper understanding of Founding-era history provides a plausible argument that policies mandating public-school prayer are no different in kind from the laws mandating worship that the Founding generation rejected as a feature of religious establishment, and thus are similarly prohibited.

At a minimum, then, a more nuanced understanding of history might lend support to the Court’s famous School Prayer Cases. But even more, understanding Founding-era objections to laws requiring attendance at state-sponsored worship provides a new vantage point for thinking about the role of coercion in Establishment Clause doctrine, especially as it relates to government-sponsored prayer.

Members of the Founding generation objected to laws mandating attendance at government-sponsored worship, even where such laws exempted dissenters. In doing so, however, they did not limit their objections to instances of so-called direct coercion, as Justices Scalia and Thomas have emphasized.45 45.See Am. Legion v. Am. Humanist Ass’n, 139 S. Ct. 2067, 2096 (2019) (Thomas, J., concurring in the judgment) (“In an action claiming an unconstitutional establishment of religion, the plaintiff must demonstrate that he was actually coerced by government conduct that shares the characteristics of an establishment as understood at the founding.”); Lee v. Weisman, 505 U.S. 577, 640 (1992) (Scalia, J., dissenting) (“The coercion that was a hallmark of historical establishments of religion was coercion of religious orthodoxy and of financial support by force of law and threat of penalty.”).Show More Instead, proponents of religious liberty at the Founding believed government lacked the power to issue commands requiring a religious observance. Rather than merely condemning discrete acts of punishment, Founding-era proponents of religious liberty condemned any governmental attempt to require formal acts of worship through law, no matter how permissively such laws functioned in practice. What mattered was the claimed power to enforce religious duties through a coercion-backed rule, not whether the rule also contained exemptions or ultimately punished discrete individuals.46 46.See infra Section II.C.Show More Thus, while not fully solving the debate about the role of coercion in Establishment Clause analysis, the Founding-era history described here offers a different way forward in how to understand it.

All this leads to a third point—this one more general. Many Founding-era objections to church-attendance laws rested, in significant part, on a belief that government lacked power to mandate worship, even under the most tolerant conditions. Yet by and large, members of the Founding generation did not seem to object to at least some other government actions involving religious observance, especially where such actions did not take the form of a coercion-backed command. Most notably, while many in the Founding generation believed that government lacked the power to “enjoin” days of prayer or thanksgiving, they generally thought that merely “recommending” such activity was acceptable, even while recognizing the dangers that distinction posed.47 47.See infra Section III.A.Show More And indeed, reflection on that point might illuminate a path for thinking through other thorny problems surrounding government-sponsored religious observance, especially in contexts where a formal rule or policy is lacking.

This Article proceeds as follows. Part I briefly explains the development of the Court’s jurisprudence surrounding mandatory public-school prayer and the puzzles surrounding those precedents, culminating in Kennedy v. Bremerton School District. Part II takes a step back to consider Founding-era history. This Part begins by canvassing laws mandating attendance at state-sponsored worship in England and the early American colonies. It goes on to explore why Founding-era Americans ultimately rejected those laws, even when they contained opt-outs for dissenters. Part III briefly discusses the scope of these Founding-era objections, first with respect to things like thanksgiving proclamations at the federal level, and second with respect to the historical development of public schools. Finally, Part IV returns to the modern cases and explores implications for government-sponsored school prayer and more.

Before proceeding to the discussion, two preliminary observations are in order. The first involves method. Following the Court’s invitation in Kennedy, this Article seeks to understand how and why Founding-era Americans rejected laws requiring church attendance, on the theory that those laws are relevant to thinking about the constitutional limits on things like government-sponsored public-school prayer today.48 48.See infra notes 105–19 and accompanying text (discussing Kennedy’s invitation to consider Founding-era history).Show More In doing so, however, the Article does not seek to provide an independent theory about why and how the Establishment Clause is incorporated against the states. Instead, I simply defer to the Court’s precedents in this area along with the Court’s corresponding assumption that—for both claims against the states as well as the federal government—Founding-era evidence is of primary importance.49 49.See, e.g., Kennedy v. Bremerton Sch. Dist., 142 S. Ct. 2407, 2421, 2428 (2022) (reaffirming the incorporation of the First Amendment and suggesting interpretation of the Establishment Clause must “faithfully reflect[] the understanding of the Founding Fathers” (quoting Town of Greece v. Galloway, 572 U.S. 565, 577 (2014))); Espinoza v. Mont. Dep’t of Revenue, 140 S. Ct. 2246, 2258–59 (2020) (looking to Founding-era history when interpreting the Establishment Clause’s application to a state-level controversy); see also id. at 2264 (Thomas, J., concurring) (“Even assuming that the [Establishment] Clause creates a[n] [individual] right and that such a right could be incorporated . . . it would only protect against an ‘establishment’ of religion as understood at the founding . . . .”). For a sampling of arguments defending the incorporation of the Establishment Clause, see Nathan S. Chapman & Michael W. McConnell, Agreeing to Disagree: How the Establishment Clause Protects Religious Diversity and Freedom of Conscience 75–84 (2023); see also Kurt T. Lash, The Second Adoption of the Establishment Clause: The Rise of the Nonestablishment Principle, 27 Ariz. St. L.J. 1085, 1088 (1995). For a contrary perspective, see generally Vincent Phillip Munõz, The Original Meaning of the Establishment Clause and the Impossibility of Its Incorporation, 8 U. Pa. J. Const. L. 585 (2006).Show More Likewise, this Article looks to evidence from the states as well as the federal government during the Founding period, because both kinds of evidence are highly relevant to understanding the historic concept of “establishment” and objections to it in this period.

The second point concerns the limits of my argument. In this Article, I attempt to chart Founding-era objections to government-mandated religious observance and the possible implications of those objections for several modern controversies. In doing so, however, the Article takes no hard-and-fast position on whether other limits under the Establishment Clause—including those not necessarily involving coercion—may also apply in specific circumstances. To take just one example, it seems likely that many at the Founding believed that government could not designate a national church or tie a religious group’s official status to adopting certain articles of faith.50 50.See, e.g., Donald L. Drakeman, Church, State, and Original Intent 229–32 (2010) (concluding that, at minimum, the Establishment Clause was understood to mean Congress could not establish a national church); Michael W. McConnell, Establishment and Disestablishment at the Founding, Part I: Establishment of Religion, 44 Wm. & Mary L. Rev. 2105, 2135–36 (2003) [hereinafter McConnell, Establishment] (discussing government control over articles of faith in South Carolina’s 1778 constitution).Show More In this Article, I contend that understanding historical objections to mandatory church-attendance laws provides the simplest path for addressing several puzzles surrounding the School Prayer Cases and related issues. But I do not foreclose the possibility that other Establishment Clause considerations may sometimes be relevant.

  1.  See Roger K. Newman, Hugo Black: A Biography 522–23 (1994). The incident also appears in Andrew Koppelman, Defending American Religious Neutrality 67–68 (2013). ↑
  2.  Engel v. Vitale, 370 U.S. 421, 431–32 (1962) (quoting James Madison, Memorial and Remonstrance Against Religious Assessments, in 2 The Writings of James Madison 183, 187 (Gaillard Hunt ed., 1901)). ↑
  3.  See Corinna Barrett Lain, God, Civic Virtue, and the American Way: Reconstructing Engel, 67 Stan. L. Rev. 479, 507–14 (2015) (describing the outcry over Engel). ↑
  4.  Anthony Lewis, Supreme Court Outlaws Official School Prayers in Regents Case Decision, N.Y. Times, June 26, 1962, at 16. ↑
  5.  370 U.S. at 422, 436. ↑
  6.  374 U.S. 203, 205 (1963). ↑
  7.  Engel, 370 U.S. at 430; Schempp, 374 U.S. at 224–25. ↑
  8.  For examples of scholarship praising the School Prayer Cases or building on their rationales, see Stephanie H. Barclay, The Religion Clauses After Kennedy v. Bremerton School District, 108 Iowa L. Rev. 2097, 2107–09 (2023); William P. Marshall, The Constitutionality of School Prayer: Or Why Engel v. Vitale May Have Had It Right All Along, 46 Cap. U. L. Rev. 339, 341–42 (2018); Ira C. Lupu & Robert W. Tuttle, Secular Government, Religious People 119–22 (2014); Koppelman, supra note 1, at 67–71. For a provocative dissent, see generally Steven D. Smith, Constitutional Divide: The Transformative Significance of the School Prayer Decisions, 38 Pepp. L. Rev. 945 (2011) (arguing the School Prayer Cases deepened divides in America by constitutionalizing secularism). ↑
  9.  See, e.g., Bruce J. Dierenfield, The Battle Over School Prayer: How Engel v. Vitale Changed America, at vii (2007) (claiming Engel was “greeted with more shock and criticism than Dred Scott v. Sandford”); Lain, supra note 3, at 507–14 (similar). For more on “popular constitutionalism,” see generally Larry D. Kramer, The People Themselves: Popular Constitutionalism and Judicial Review (2004). ↑
  10.  Lain, supra note 3, at 512. ↑
  11.  Id. at 482, 522 n.271 (discussing contemporaneous polling). ↑
  12.  As of 2019, “roughly four-in-ten teens (including 68% of evangelical Protestant teens) who go to public school say they think it is ‘appropriate’ for a teacher to lead a class in prayer.” For a Lot of American Teens, Religion Is a Regular Part of the Public School Day, Pew Rsch. Ctr. (Oct. 3, 2019), https://www.pewresearch.org /religion/2019/10/03/for-a-lot-of-american-teens-religion-is-a-regular-part-of-the-public-school-day/ [https://perma.cc/VHJ8-XFRP]. ↑
  13.  See Cong. Rsch. Serv., School Prayer: The Congressional Response, 1962–1998, at 1–2 (1998). ↑
  14.  Dana Rubinstein, Adams, Discussing Faith, Dismisses Idea of Separating Church and State, N.Y. Times (Feb. 28, 2023), https://www.nytimes.com/2023/02/28/nyregion/eric-adam‌s-religion-church.html [https://perma.cc/6UTX-F5V2]. ↑
  15.  For one thoughtful perspective on this problem, see generally Noah Feldman, Non-sectarianism Reconsidered, 18 J.L. & Pol. 65 (2002). ↑
  16.  Kennedy v. Bremerton Sch. Dist., 142 S. Ct. 2407, 2428 (2022) (quoting Town of Greece v. Galloway, 572 U.S. 565, 576–77 (2014)); Am. Legion v. Am. Humanist Ass’n, 139 S. Ct. 2067, 2087 (2019) (quoting Town of Greece, 572 U.S. at 576) (same). ↑
  17.  See infra Sections I.A, I.B (describing these theories). ↑
  18.  See Sch. Dist. of Abington Twp. v. Schempp, 374 U.S. 203, 223–24 (1963); Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 305–08 (2000). The government-speech theory became closely related to the three-part test first articulated in Lemon v. Kurtzman, 403 U.S. 602, 612–13 (1971). ↑
  19.  See infra Section I.A (discussing these practices). ↑
  20.  Marsh v. Chambers, 463 U.S. 783, 787–92 (1983); Town of Greece, 572 U.S. at 575–85; see also id. at 616 (Kagan, J., dissenting) (disagreeing on the outcome in Town of Greece while agreeing with Marsh’s decision “upholding [a] tradition of beginning each session with a chaplain’s prayer”). ↑
  21.  505 U.S. 577, 599 (1992). ↑
  22.  Id. at 592–93. ↑
  23.  Id. at 593–94. ↑
  24.  For the classic exposition of this problem, see generally Abner S. Greene, The Pledge of Allegiance Problem, 64 Fordham L. Rev. 451 (1995). ↑
  25.  Lee, 505 U.S. at 640–42 (Scalia, J., dissenting) (quoting id. at 587 (majority opinion)). ↑
  26.  Id. at 640. ↑
  27.  See, e.g., Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 47 (2004) (Thomas, J., concurring in the judgment) (observing that “[s]tudents are actually compelled . . . by law . . . to attend school” (citation omitted)). ↑
  28.  Lee, 505 U.S. at 643 (Scalia, J., dissenting). ↑
  29.  Elk Grove, 542 U.S. at 47, 52–53 (Thomas, J., concurring in the judgment); see also Van Orden v. Perry, 545 U.S. 677, 693 (2005) (Thomas, J., concurring) (“The Framers understood an establishment ‘necessarily [to] involve actual legal coercion.’” (quoting Elk Grove, 542 U.S. at 52 (Thomas, J., concurring in the judgment))); Town of Greece v. Galloway, 572 U.S. 565, 610 (2014) (Thomas, J., concurring in part and in the judgment) (similar). ↑
  30.  142 S. Ct. 2407, 2415–16 (2022). ↑
  31.  Id. at 2427. ↑
  32.  Id. at 2428–32. ↑
  33.  Id. at 2429. ↑
  34.  Id. (emphasis added); see also id. at 2451 (Sotomayor, J., dissenting) (“The Court’s suggestion that coercion must be ‘direc[t]’ . . . is contrary to long-established precedent.” (alterations in original)). ↑
  35.  Id. at 2451–52 (Sotomayor, J., dissenting) (quoting Lee v. Weisman, 505 U.S. 577, 594 (1992)). ↑
  36.  See, e.g., Justin Driver, Three Hail Marys: Carson, Kennedy, and the Fractured Détente Over Religion and Education, 136 Harv. L. Rev. 208, 239 (2022) (suggesting that Kennedy “comes perilously close to installing the understanding of coercion that Justice Scalia’s dissenting opinion [in Lee] advanced”); Ira C. Lupu & Robert W. Tuttle, Response, Kennedy v. Bremerton School District—A Sledgehammer to the Bedrock of Nonestablishment, Geo. Wash. L. Rev. on the Docket (July 26, 2022), https://gwlr.org/kennedy-v-bremerton-school-d‌istrict-a-sledgehammer-to-the-bedrock-of-nonestablishment [https://perma.cc/F46M-BKLS] (suggesting that after Kennedy, “[p]rayer in schools may soon . . . requir[e] the provision of opt out rights to avoid compelled speech but no limitations on what schools may sponsor”). Others have gone even further. See, e.g., Alexander Tsesis, Government Speech and the Establishment Clause, 2022 U. Ill. L. Rev. 1761, 1801–02 (suggesting that in Kennedy “a majority of the Court adopted [Justice Scalia’s] flawed test”). ↑
  37.  See Sch. Dist. of Abington Twp. v. Schempp, 374 U.S. 203, 238–39 & n.7 (1963) (Brennan, J., concurring) (noting that in early America, “education was almost without exception under private sponsorship and supervision” until at least “the first quarter of the nineteenth century”); see also infra Section III.B. ↑
  38.  Kennedy, 142 S. Ct. at 2429 (noting that “government may not, consistent with a historically sensitive understanding of the Establishment Clause, ‘make a religious observance compulsory’ [or] . . . ‘coerce anyone to attend church’” (quoting Zorach v. Clauson, 343 U.S. 306, 314 (1952))). ↑
  39.  Lee, 505 U.S. at 643 (Scalia, J., dissenting). ↑
  40.  See infra Section II.B. ↑
  41.  See id. ↑
  42.  Philanthropos, Number IV, Indep. Chron. & Universal Advertiser (Bos.), Apr. 6, 1780. ↑
  43.  See infra Part IV. ↑
  44.  See infra Section III.B. ↑
  45.  See Am. Legion v. Am. Humanist Ass’n, 139 S. Ct. 2067, 2096 (2019) (Thomas, J., concurring in the judgment) (“In an action claiming an unconstitutional establishment of religion, the plaintiff must demonstrate that he was actually coerced by government conduct that shares the characteristics of an establishment as understood at the founding.”); Lee v. Weisman, 505 U.S. 577, 640 (1992) (Scalia, J., dissenting) (“The coercion that was a hallmark of historical establishments of religion was coercion of religious orthodoxy and of financial support by force of law and threat of penalty.”). ↑
  46.  See infra Section II.C. ↑
  47.  See infra Section III.A. ↑
  48.  See infra notes 105–19 and accompanying text (discussing Kennedy’s invitation to consider Founding-era history). ↑
  49.  See, e.g., Kennedy v. Bremerton Sch. Dist., 142 S. Ct. 2407, 2421, 2428 (2022) (reaffirming the incorporation of the First Amendment and suggesting interpretation of the Establishment Clause must “faithfully reflect[] the understanding of the Founding Fathers” (quoting Town of Greece v. Galloway, 572 U.S. 565, 577 (2014))); Espinoza v. Mont. Dep’t of Revenue, 140 S. Ct. 2246, 2258–59 (2020) (looking to Founding-era history when interpreting the Establishment Clause’s application to a state-level controversy); see also id. at 2264 (Thomas, J., concurring) (“Even assuming that the [Establishment] Clause creates a[n] [individual] right and that such a right could be incorporated . . . it would only protect against an ‘establishment’ of religion as understood at the founding . . . .”). For a sampling of arguments defending the incorporation of the Establishment Clause, see Nathan S. Chapman & Michael W. McConnell, Agreeing to Disagree: How the Establishment Clause Protects Religious Diversity and Freedom of Conscience 75–84 (2023); see also Kurt T. Lash, The Second Adoption of the Establishment Clause: The Rise of the Nonestablishment Principle, 27 Ariz. St. L.J. 1085, 1088 (1995). For a contrary perspective, see generally Vincent Phillip Munõz, The Original Meaning of the Establishment Clause and the Impossibility of Its Incorporation, 8 U. Pa. J. Const. L. 585 (2006). ↑

  50.  See, e.g., Donald L. Drakeman, Church, State, and Original Intent 229–32 (2010) (concluding that, at minimum, the Establishment Clause was understood to mean Congress could not establish a national church); Michael W. McConnell, Establishment and Disestablishment at the Founding, Part I: Establishment of Religion, 44 Wm. & Mary L. Rev. 2105, 2135–36 (2003) [hereinafter McConnell, Establishment] (discussing government control over articles of faith in South Carolina’s 1778 constitution). ↑

Adapting Conservation Governance Under Climate Change: Lessons from Indian Country

Anthropogenic climate change is increasingly causing disruptions to ecological communities upon which Natives have relied for millennia. These disruptions raise existential threats not only to ecosystems but to Native communities. Yet no analysis has carefully explored how climate change is affecting the governance of tribal ecological lands. This Article, by examining the current legal adaptive capacity to manage the effects of ecological change on tribal lands, closes this scholarly and policy gap.

This Article first considers interventions to date, finding them to be lacking in even assessing—let alone addressing—climate risks to tribal ecosystem governance. It then carefully explores how climate change raises distinctive risks and advantages to tribal governance as compared to federal and state approaches. Relying in part on a review of publicly available tribal plans, this Article details how tribal adaptation planning to date has fared.

Focusing on climate change and ecological adaptation, this Article delves into the substantive, procedural, and structural aspects of tribal governance. Substantively, tribal governance often tends to be considerably less wedded to conservation goals and strategies that rely on “natural” preservation, and many tribes focus less on maximizing yield in favor of more flexible objectives that may be more congruent with adaptation. Procedurally, like other authorities, many tribal governments could better integrate adaptive management and meaningful public participation into adaptation processes, yet some tribes serve as exemplars for doing so (as well as for integrating traditional ecological knowledge with Western science). Structurally, tribal ecological land governance should not only continue to tap the advantages of decentralized tribal authority but also complement it through more robust (1) federal roles in funding and information dissemination and (2) intergovernmental coordination, assuming other governments will respect tribal sovereignty. This Article concludes by identifying areas where tribal management practices might serve as valuable exemplars for adaptation governance more generally, as well as areas in which additional work would be helpful.

Introduction

In the wilderness of Alaska, where snow-covered landscapes stretch as far as the eye can see, a profound ecological drama is unfolding. It is a story that speaks of the intimate bond between the land, its creatures, and the Native peoples who have called it home for millennia. At the heart of this story are herds of caribou, majestic creatures with antlered crowns, whose annual migrations have been a spectacle of nature and a lifeline for the Native communities of Alaska.1 1.Christian Thorsberg, Andrea Medeiros, Kristin Reakoff & Brittany Sweeney, Caribou and Communities in a Changing Climate, ArcGIS StoryMaps(Dec. 5, 2023), https://storymaps.arc‌gis.com/stories/158c95ff398440e8b875a791e2bec2f8/ [https://perma.cc/2VA2-GPDJ] (“Caribou (Rangifer tarandus) have roamed the circumpolar north for hundreds of thousands of years. . . . Alaska Native peoples and other subsistence users depend upon this cyclical movement for annual harvests, relying on caribou for food, clothing, cultural practice, and emotional and spiritual health.”).Show More But as the world warms due to climate change, the Arctic’s icy facade begins to crack and melt, causing profound transformation.2 2.Id.(“[A]s a warming climate changes their habitat—causing seasons to shift, ice to melt at different times of the year, and unpredictable precipitation—the population of many of Alaska’s caribou herds has declined, affecting not only the species, but humans who have lived with and from them since [time] immemorial.”).Show More The caribou, long attuned to the rhythms of the frozen tundra, now find their ancient routes disrupted as climate change negatively affects food and habitat.3 3.See Elizabeth Manning, Caribou and Climate Change: The Nelchina Caribou Herd, Lichens and Fire, Alaska Fish & Wildlife News (Mar. 2008), https://www.adfg.alaska.gov/in‌dex.cfm?adfg=wildlifenews.view_article&articles_id=356 [https://perma.cc/H73R-6BLP].Show More

For Alaska Natives, this upheaval is nothing short of a crisis. These Native communities have relied on the caribou as a primary source of sustenance, clothing, and cultural significance for countless generations.4 4.Thorsberg et al., supra note 1; see also Caribou Stewardship Based on Indigenous Knowledge, Nat’l Park Serv. (Nov. 24, 2020), https://www.nps.gov/articles/000/ikcaribouste‌wardship.htm#:~:text=The%20I%C3%B1upiat%20have%20relied%20on,hunt%20through%20federal%20subsistence%20management [https://perma.cc/UZ7Z-ZSLM]; Hannah Atkinson, Mobilizing Indigenous Knowledge Through the Caribou Hunter Success Working Group, 9 Land, Oct. 31, 2020, at 1, 2, https://www.mdpi.com/2073-445X/9/11/423 [https://pe‌rma.cc/KY4P-USS7] (“For the Iñupiat of northwest Alaska, caribou is a cultural keystone species. That is, the [Western Arctic Caribou Herd] ‘play a unique role in shaping and characterizing the identity of the people who rely on them [and] that become embedded in a people’s cultural traditions and narratives, their ceremonies, dances, songs, and discourse.’” (footnotes omitted) (quoting Ann Garibaldi & Nancy Turner, Cultural Keystone Species: Implications for Ecological Conservation and Restoration, 9 Ecology & Soc’y, no. 3, 2004, at 1, 1, https://www.ecologyandsociety.org/vol9/iss3/art1/print.pdf [https://perma.cc/3ZLT-ZC‌RQ])).Show More Subsistence hunters, who used to be able to rely on caribou for survival, now have to travel as many as 200 miles to find a herd, and one hunter reported not seeing caribou for years.5 5.W. Arctic Caribou Herd Working Grp., Working Group Proposes Large Reduction in Caribou Harvest, Caribou Trails, Summer 2023, at 1, 1, https://www.adfg.alaska.gov/static/ho‌me/library/pdfs/wildlife/caribou_trails/caribou_trails_2023.pdf [https://perma.cc/467Q-HZ‌6M].Show More The caribou, once so abundant and dependable, have become less predictable, and Alaska’s Native communities who depend on them are left in uncertainty.6 6.Thorsberg et al., supra note 1.Show More The very essence of their identity, intertwined with the land and the caribou, faces an existential challenge. This harrowing story is but one example of myriad instances across “Indian country”7 7.18 U.S.C. § 1151 (“Except as otherwise provided in sections 1154 and 1156 of this title, the term ‘Indian country’, as used in this chapter, means (a) all land within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent, and, including rights-of-way running through the reservation, (b) all dependent Indian communities within the borders of the United States whether within the original or subsequently acquired territory thereof, and whether within or without the limits of a state, and (c) all Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way running through the same.”). This term originated in the context of the elimination of Natives via war. Roxanne Dunbar-Ortiz, An Indigenous People’s History of the United States 131–32 (Tenth-Anniversary ed. 2022).Show More in which anthropogenic climate change is profoundly affecting species’ traditional habitats. Climate-driven species shifts affect both the communities whose lands species previously inhabited and the communities onto whose lands such species have moved (or are attempting to move).

Anthropogenic climate change has induced, and will continue to induce, substantial changes to virtually all ecosystems around the globe. The distributions of plant and animal species are shifting faster than they did historically.8 8.See generally I-Ching Chen, Jane K. Hill, Ralf Ohlemüller, David B. Roy & Chris D. Thomas, Rapid Range Shifts of Species Associated with High Levels of Climate Warming, 333 Science 1024 (2011) (demonstrating that species range shifts are occurring at an accelerated rate associated with high levels of climate warming).Show More As demonstrated by the story of caribou in Alaska, these stressors are fundamentally changing ecosystems, creating new communities, and raising new challenges for management such as how to deal with “new natives” displacing or otherwise harming “old natives.”9 9.Alejandro E. Camacho & Jason S. McLachlan, Regulatory Fragmentation: An Unexamined Barrier to Species Conservation Under Climate Change, 3 Frontiers in Climate, Nov. 22, 2021, at 1, 4, https://www.frontiersin.org/journals/climate/articles/10.3389/fclim.20‌21.735608/full [https://perma.cc/WXD9-539F] (“In the novel ecological communities created when ‘new natives’ mix with ‘old natives,’ the difficulty of establishing [lists of prohibited invasive species] will be compounded by ambiguity about the status of ‘new natives’ combined with the difficulty of assessing the acceptable impact of ‘new natives’ in the context of novel ecological communities.”).Show More Though climate change is causing stress to and reshaping virtually every feature of human and nonhuman systems in every community, this Article focuses on the long-overlooked but massive effects of climate change on biotic communities—in particular, those located on tribal lands, species or landscapes of cultural or spiritual significance to Native peoples, and/or nonhuman biota potentially subject to tribal governance in the foreseeable future.

As one of the Authors has written extensively about elsewhere, the substantial ecological changes wrought by climate change—and the uncertainty that accompanies these stressors—likely necessitate a rethinking of the substantive goals, procedural mechanisms, and structural institutions of conservation governance worldwide.10 10.Alejandro E. Camacho,De- and Re-Constructing Public Governance for Biodiversity Conservation, 73 Vand. L. Rev. 1585, 1589 (2020) [hereinafter Camacho, De- and Re-Constructing]; Alejandro E. Camacho, In the Anthropocene: Adaptive Law, Ecological Health, and Biotechnologies,15 Law, Innovation & Tech. 280, 299–300(2023) [hereinafter Camacho, In the Anthropocene].Show More Substantively, climate change illuminates the tensions between the various conventional objectives of conservation instantiated throughout natural resources law.11 11.See Camacho, In the Anthropocene, supra note 10, at 286, 298–300 (detailing traditional goals of conservation typical in natural resource law and their pitfalls in a changing climate).Show More Procedurally, climate change also raises fundamental questions about how to effectively cultivate participatory decision-making processes in ways that manage ecological and regulatory uncertainty.12 12.Camacho, De- and Re-Constructing, supra note 10, at 1613 (“The standard public processes used for implementing public biodiversity management and for regulating private activity have not been well structured to promote learning and manage the substantial uncertainties and evolving character of ecological resources.”).Show More Finally, climate change exacerbates existing cross-jurisdictional challenges—for example, transboundary cost externalization, regulatory commons risks, and conflicts between different adopted management strategies.13 13.See id. at 1623–24; see also Camacho, In the Anthropocene, supra note 10, at 303 (arguing that current legal frameworks in Western jurisdictions are not designed to manage complex, transboundary issues like climate change); Alejandro E. Camacho & Robert L. Glicksman, Reorganizing Government: A Functional and Dimensional Framework 200 (2019) (describing increased cross-jurisdictional challenges raised by climate change, such as interjurisdictional spillovers and conflicts).Show More

As detailed in this Article, tribal sovereignty, tribal lands, and Indigenous cultures14 14.A note about the terminology used in this Article. We use the term “tribe” or “tribal” to refer to the 574 federally recognized tribes located within the exterior boundaries of the United States. Indian Entities Recognized by and Eligible to Receive Services from the United States Bureau of Indian Affairs, 89 Fed. Reg. 944 (Jan. 8, 2024). We acknowledge that there are numerous Indigenous groups within the United States that have not been federally recognized for a wide variety of historical and political reasons (e.g., Native Hawaiians). Cohen’s Handbook of Federal Indian Law §§ 3.02, 4.07[4][a], [c] (Nell Jessup Newton et al. eds., 2005) (discussing factors contributing to federal recognition of tribes generally and speaking to the situation of Native Hawaiians specifically). Because this Article focuses on federal law and the federal government’s relationship with tribes, however, we will focus our analysis on federally recognized tribes. When we wish to be more inclusive than federally recognized tribes, we will use the term “Indigenous.”Show More raise these issues in distinctive and insightful ways. Building on issues and paradoxes we have written about more broadly elsewhere, this Article delves into the intersection of tribes and climate change, with a special emphasis on ecological adaptation. Tribal lands and governance amplify certain challenges that are likely to be experienced elsewhere, in part due to the distinctive vulnerabilities15 15.We do not use the term “vulnerabilities” to suggest that tribes are victims, or somehow lesser than other communities impacted by climate change. Rather, we use this term to highlight historical and legal differences that combine to make tribal communities often uniquely vulnerable to the impacts of climate change.Show More of tribal communities.16 16.See infra Subsection I.B.1.Show More There is an indisputable and

well-documented history of the taking of vast expanses of indigenous lands with abundant resources, along with active suppression of indigenous peoples’ culture and political institutions, entrenched patterns of discrimination against them and outright brutality, all of which figured in the history of the settlement of the country and the building of its economy.17 17.S. James Anaya, Report of the Special Rapporteur on the Rights of Indigenous Peoples on the Situation of Indigenous Peoples in the United States of America, 32 Ariz. J. Int’l & Compar. L. 51, 61 (2015).Show More

These “conditions of disadvantage persist with the continuing effects of a long history of wrongs and past, misguided policies.”18 18.Id. at 59.Show More The brutal treatment of Indigenous peoples by colonial powers19 19.See, e.g., Immigration & Relocation in U.S. History: Native American, Libr. of Cong., https://www.loc.gov/classroom-materials/immigration/native-american/ [https://perma.cc/K‌CK7-QG4L] (last visited Sept. 6, 2024) (explaining that European settlement in North America triggered “disease, starvation, and bloodshed”).Show More has resulted in the deepened vulnerability20 20.For a discussion of the use of the word “vulnerability,” see Hans-Martin Füssel, Vulnerability: A Generally Applicable Conceptual Framework for Climate Change Research, 17 Glob. Env’t Change 155, 157–58 (2007) (presenting a framework for understanding the concept of vulnerability through the lens of four different factors: physical, economic, social, and environmental); see also Karen O’Brien, Siri Eriksen, Lynn P. Nygaard & Ane Schjolden, Why Different Interpretations of Vulnerability Matter in Climate Change Discourses, 7 Climate Pol’y 73, 74 (2007) (attempting to organize the varying scholarly definitions of “vulnerability” into one “common framework”).Show More of the approximately 56.2 million acres of land now held in trust by the federal government for tribes.21 21.What Is a Federal Indian Reservation?, U.S. Dep’t of the Interior: Bureau of Indian Affs. (Aug. 19, 2017, 2:53 PM), https://www.bia.gov/faqs/what-federal-indian-reservation [https://‌perma.cc/TUY7-47Y8].Show More In terms of climate change, the cumulative impact of this historic mistreatment has resulted in many tribal communities being placed on less desirable land and, as a result, facing poor economic conditions—factors which lessen tribes’ ability to effectively combat the negative impacts of climate change.22 22.See Justin Farrell et al., Effects of Land Dispossession and Forced Migration on Indigenous Peoples in North America, 374 Science, Oct. 29, 2021, at 1, 8, https://www.scien‌ce.org/doi/epdf/10.1126/science.abe4943.Show More

There are legal and cultural differences that affect the magnitude of this vulnerability. Native cultures and traditions are often tied to the environment and land in a manner that differs from that of the dominant society.23 23.We would like to avoid traditional stereotypes of American Indians as “Noble Savages” or “Bloodthirsty Savages.” See Rebecca Tsosie, Tribal Environmental Policy in an Era of Self-Determination: The Role of Ethics, Economics, and Traditional Ecological Knowledge, 21 Vt. L. Rev. 225, 270 (1996) (“The problems of cross-cultural interpretation and the attempt to define ‘traditional’ indigenous beliefs raise a common issue: the tendency of non-Indians to glorify Native Americans as existing in ‘perfect harmony’ with nature (the ‘Noble Savage’ resurrected) or, on the other hand, denounce them as being as rapacious to the environment as Europeans (the ‘Bloodthirsty Savage’ resurrected).”).Show More While it is without doubt that each tribal nation has a distinctive relationship with its particular land and environment, it is also true that the common spiritual, medicinal, and cultural connections that tribal communities have with their land differs in kind from the relationship other communities in the United States have with their land.24 24.Frank Pommersheim, The Reservation as Place: A South Dakota Essay, 34 S.D. L. Rev. 246, 250 (1989); see also Nat’l Cong. of Am. Indians, Resolution EWS-06-004: Supporting a National Mandatory Program to Reduce Climate Change Pollution and Promote Renewable Energy, at 2 (2006 Winter Session), https://archive.ncai.org/attachments/Resolution_KSlvpc‌MnfSafhsDsxFnQcTDKMclEpNfvEPQFCsLlhonOXZrOOXu_EWS-06-004.pdf [https://per‌ma.cc/89XA-Z2K3] (“[C]limate-related changes to the weather, food sources, and local landscapes undermine the social identity and cultural survival of American Indians and Alaska Natives . . . .”).Show More Many tribal communities “have a deep relationship with ancestral homelands for sustenance, religious communion and comfort, and to maintain the strength of personal and interfamilial identities. Through language, songs, and ceremonies, tribal people continue to honor sacred springs, ancestral burial places, and other places where ancestral communities remain alive.”25 25.Mary Christina Wood & Zachary Welcker, Tribes as Trustees Again (Part I): The Emerging Tribal Role in the Conservation Trust Movement,32 Harv. Env’t L. Rev. 373, 381 (2008).Show More As a result, for many (but not all) tribal and Indigenous people, culture and spirituality are connected to specific lands. Such connections can provide wisdom about adaptive capacity, but they also can hinder the benefits or even availability of certain adaptive strategies (e.g., making it especially traumatizing to relocate or to be unable to relocate in the face of climate change).

The distinctive legal connections tribes have to specific lands, for instance, restrict the capacity for tribes to accommodate climate change through movement. Many tribes have treaty agreements with the federal government, and the rights emerging from these treaties (such as hunting and fishing rights) are usually tied to a tribe’s traditional homelands.26 26.Cohen’s Handbook of Federal Indian Law, supra note 14, § 4.05[1], at 276, § 18.02, at 1122–24.Show More In fact, the majority of federal Indian law is connected to the legally defined “status” of land, defined as “Indian country.”27 27.See supra note 7.Show More The fact that much of Indian law and treaty rights are connected to specific parcels of land deepens tribes’ vulnerability to climate change, as a tribe may not easily leave its tribal territory and continue to enjoy the same legal rights elsewhere.

A focus on tribal ecosystem governance in light of climate change is also invaluable given tribes’ distinctive role in advancing climate change adaptation and resource conservation. First, there are approximately 56.2 million acres of land held in trust by the federal government for the benefit of tribes and individual Indians.28 28.What Is a Federal Indian Reservation?, supra note 21.Show More Many areas falling under tribal control can be used for conservation purposes,29 29.See Background: Sharing Information & Techniques Nationwide, Native Am. Fish & Wildlife Soc’y, https://www.nafws.org/about/background/ [https://perma.cc/HEJ2-CMPV] (last visited Sept. 6, 2024).Show More with more Indigenous-managed lands being ecologically intact and serving as a refuge for threatened species.30 30.Cf. Stephen T. Garnett et al., A Spatial Overview of the Global Importance of Indigenous Lands for Conservation, 1 Nature Sustainability 369, 370 (2018) (describing the global importance and value of Indigenous-managed lands in conservation goals); Christopher J. O’Bryan et al., The Importance of Indigenous Peoples’ Lands for the Conservation of Terrestrial Mammals, 35 Conservation Biology 1002, 1006 (2021) (highlighting the importance of Indigenous lands for the conservation of threatened and endangered mammal species globally).Show More Second, because of the sovereign status of these tribes, states and localities have little jurisdictional control over the regulatory activity on these lands.31 31.California v. Cabazon Band of Mission Indians, 480 U.S. 202, 207 (1987) (explaining that states generally do not have the authority to enforce their laws on tribes unless Congress grants them the power). See generally Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832) (holding that the laws of Georgia generally did not apply to Cherokee territory within the state because of tribal sovereignty and federal preemption).Show More Adaptation planning therefore is vital for ensuring that effective resource conservation is occurring. Third, in line with the experimentalist benefits of a federal system,32 32.Camacho & Glicksman, supra note 13, at 34.Show More the innovations being developed by tribes in this space may prove valuable to other sovereigns—such as other tribes, states, and localities—as they look to develop their own climate change adaptation policies. Finally, there are likely to be substantial opportunities for interjurisdictional information sharing and learning; federal, state, and municipal jurisdictions are likely to learn from the experience of tribal authorities in climate adaptation and ecosystem management, and vice versa.33 33.See generally Morgan Hepler & Elizabeth Ann Kronk Warner, Learning from Tribal Innovations: Lessons in Climate Change Adaptation, 49 Env’t L. Rep. 11130 (2019) (discussing how tribal governments can serve as valuable “laboratories” from which other sovereigns can learn); Elizabeth Ann Kronk Warner, Returning to the Tribal Environmental “Laboratory”: An Examination of Environmental Enforcement Techniques in Indian Country, 6 Mich. J. Env’t & Admin. L. 341 (2017) (same); Elizabeth Ann Kronk Warner, Justice Brandeis and Indian Country: Lessons from the Tribal Environmental Laboratory, 47 Ariz. St. L.J. 857 (2015) [hereinafter Kronk Warner, Justice Brandeis and Indian Country] (same); Elizabeth Ann Kronk Warner, Tribes as Innovative Environmental “Laboratories,” 86 U. Colo. L. Rev. 789 (2015) [hereinafter Kronk Warner, Tribes as Innovative Environmental “Laboratories”] (same).Show More

Accordingly, a careful and thorough accounting of the distinctive governance challenges raised on tribal lands by climate change is long overdue. Unfortunately, existing academic literature and federal governmental analyses on, and initiatives for, addressing the potential harms from climate change—both the ecological effects on tribal lands, as well as the challenges raised for effective management of tribal lands—remain limited. The scientific analysis of climate effects on vulnerable species, and biota on tribal lands more generally, lags behind that for other lands. More importantly, existing scholarly literature and government analyses insufficiently explore how climate change is likely to stress the governance goals, processes, and institutions that may influence the management of ecological resources on tribal lands.

This Article seeks to begin to fill these gaps in several important ways. The first objective is to bring awareness of the distinctive challenges and opportunities of climate-related conservation on tribal land to the broader scholarly and policy discussion on climate change adaptation in general and ecological adaptation in particular. The character of tribal lands offers important context for (1) assessing the potentially conflicting substantive conservation goals of ecosystem governance; (2) working through decisional processes about conservation; and (3) managing structural governance problems, including regulatory fragmentation and intergovernmental coordination. Second, this Article makes clear that the federal government could and should do substantially more to support tribal governance in the context of preparing for and managing the effects of climate change, particularly related to promoting biodiversity and ecological health. Finally, this Article illuminates various insights for scholars and policymakers, not only in tribal governments engaging in adaptation planning but also local, state, and federal jurisdictions. In particular, it offers examples of tribal governments that may be engaging in adaptation strategies about which other authorities can learn important lessons.

To accomplish these goals, Part I establishes a foundation upon which to scaffold our arguments by delving into the scant existing literature related to ecological adaptation and climate change in Indian country. Scholars and policymakers have focused on concerns about tribal vulnerabilities and sovereignty, as well as the integration of Indigenous knowledge (“IK”) (i.e., the breadth of Indigenous socioeconomic, cultural, and scientific knowledge) and traditional ecological knowledge (“TEK”) into federal and state processes, but they largely neglect deeper substantive, procedural, and structural governance concerns raised by climate change. Because effective governance is key to adequately addressing the challenges posed by climate change and ecological adaptation, evaluation of tribal governance structures proves incredibly important to any discussion of solutions.

Part II takes a deeper dive into how these different facets of governance are likely to be affected by the impact of climate change on tribal lands. To do so, it relies in part on the first thorough assessment of published and publicly available tribal adaptation plans. First, it considers the conventional strategies and goals of resource conservation, namely laws promoting historical preservation, natural and wilderness preservation, and sustained yield. While some tribal governments face tensions between promoting historical fidelity and managing climate change, others are developing adaptation strategies that are more congruent with promoting biodiversity and long-term ecological health. Additionally, as compared to federal and state resource management laws, tribal governance tends to be less wedded to goals and strategies that rely on “natural” preservation. Finally, many tribes focus less on maximizing yield in favor of more flexible objectives that may be more congruent with ecological adaptation.

In terms of procedural ecosystem governance, this Article emphasizes the need to incorporate adaptability, promote meaningful participation, and better integrate Western science with TEK. We explore, however, how long-established governance frameworks for many tribal governments, and even some tribal adaptation plans, allow for more adaptive and open decision-making. Some adaptation plans also illustrate how TEK can be effectively combined in resource management with conventional Western scientific data generation and analysis.

Finally, this Article considers the structural configuration of authority among the constellation of institutions affecting the governance of tribal ecological lands. Tribes may suffer under prevailing decentralized, fragmented, and uncoordinated conservation governance, yet there nonetheless are diversity, experimentation, expertise, and legitimacy advantages to decentralized governmental structures—especially in the context of climate change adaptation. As such, it makes sense to maintain decentralized authority but to complement it through more robust federal roles in funding and information collection and dissemination, as well as by better promoting intergovernmental coordination that expands on recent federal efforts to make federal-tribal consultation more robust.34 34.This recommendation assumes that other sovereigns will acknowledge and respect tribal sovereignty.Show More This Article concludes with a forward-looking agenda for scholars and policymakers interested in enhancing the cross-jurisdictional governance of tribal ecological lands.

  1.  Christian Thorsberg, Andrea Medeiros, Kristin Reakoff & Brittany Sweeney, Caribou and Communities in a Changing Climate, ArcGIS StoryMaps (Dec. 5, 2023), https://storymaps.arc‌gis.com/stories/158c95ff398440e8b875a791e2bec2f8/ [https://perma.cc/2VA2-GPDJ] (“Caribou (Rangifer tarandus) have roamed the circumpolar north for hundreds of thousands of years. . . . Alaska Native peoples and other subsistence users depend upon this cyclical movement for annual harvests, relying on caribou for food, clothing, cultural practice, and emotional and spiritual health.”). ↑
  2.  Id. (“[A]s a warming climate changes their habitat—causing seasons to shift, ice to melt at different times of the year, and unpredictable precipitation—the population of many of Alaska’s caribou herds has declined, affecting not only the species, but humans who have lived with and from them since [time] immemorial.”). ↑
  3.  See Elizabeth Manning, Caribou and Climate Change: The Nelchina Caribou Herd, Lichens and Fire, Alaska Fish & Wildlife News (Mar. 2008), https://www.adfg.alaska.gov/in‌dex.cfm?adfg=wildlifenews.view_article&articles_id=356 [https://perma.cc/H73R-6BLP]. ↑
  4.  Thorsberg et al., supra note 1; see also Caribou Stewardship Based on Indigenous Knowledge, Nat’l Park Serv. (Nov. 24, 2020), https://www.nps.gov/articles/000/ikcaribouste‌wardship.htm#:~:text=The%20I%C3%B1upiat%20have%20relied%20on,hunt%20through%20federal%20subsistence%20management [https://perma.cc/UZ7Z-ZSLM]; Hannah Atkinson, Mobilizing Indigenous Knowledge Through the Caribou Hunter Success Working Group, 9 Land, Oct. 31, 2020, at 1, 2, https://www.mdpi.com/2073-445X/9/11/423 [https://pe‌rma.cc/KY4P-USS7] (“For the Iñupiat of northwest Alaska, caribou is a cultural keystone species. That is, the [Western Arctic Caribou Herd] ‘play a unique role in shaping and characterizing the identity of the people who rely on them [and] that become embedded in a people’s cultural traditions and narratives, their ceremonies, dances, songs, and discourse.’” (footnotes omitted) (quoting Ann Garibaldi & Nancy Turner, Cultural Keystone Species: Implications for Ecological Conservation and Restoration, 9 Ecology & Soc’y, no. 3, 2004, at 1, 1, https://www.ecologyandsociety.org/vol9/iss3/art1/print.pdf [https://perma.cc/3ZLT-ZC‌RQ])). ↑
  5.  W. Arctic Caribou Herd Working Grp., Working Group Proposes Large Reduction in Caribou Harvest, Caribou Trails, Summer 2023, at 1, 1, https://www.adfg.alaska.gov/static/ho‌me/library/pdfs/wildlife/caribou_trails/caribou_trails_2023.pdf [https://perma.cc/467Q-HZ‌6M]. ↑
  6.  Thorsberg et al., supra note 1. ↑
  7.  18 U.S.C. § 1151 (“Except as otherwise provided in sections 1154 and 1156 of this title, the term ‘Indian country’, as used in this chapter, means (a) all land within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent, and, including rights-of-way running through the reservation, (b) all dependent Indian communities within the borders of the United States whether within the original or subsequently acquired territory thereof, and whether within or without the limits of a state, and (c) all Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way running through the same.”). This term originated in the context of the elimination of Natives via war. Roxanne Dunbar-Ortiz, An Indigenous People’s History of the United States 131–32 (Tenth-Anniversary ed. 2022). ↑
  8.  See generally I-Ching Chen, Jane K. Hill, Ralf Ohlemüller, David B. Roy & Chris D. Thomas, Rapid Range Shifts of Species Associated with High Levels of Climate Warming, 333 Science 1024 (2011) (demonstrating that species range shifts are occurring at an accelerated rate associated with high levels of climate warming). ↑
  9.  Alejandro E. Camacho & Jason S. McLachlan, Regulatory Fragmentation: An Unexamined Barrier to Species Conservation Under Climate Change, 3 Frontiers in Climate, Nov. 22, 2021, at 1, 4, https://www.frontiersin.org/journals/climate/articles/10.3389/fclim.20‌21.735608/full [https://perma.cc/WXD9-539F] (“In the novel ecological communities created when ‘new natives’ mix with ‘old natives,’ the difficulty of establishing [lists of prohibited invasive species] will be compounded by ambiguity about the status of ‘new natives’ combined with the difficulty of assessing the acceptable impact of ‘new natives’ in the context of novel ecological communities.”). ↑
  10. Alejandro E. Camacho, De- and Re-Constructing Public Governance for Biodiversity Conservation, 73 Vand. L. Rev. 1585, 1589 (2020) [hereinafter Camacho, De- and Re-Constructing]; Alejandro E. Camacho, In the Anthropocene: Adaptive Law, Ecological Health, and Biotechnologies, 15 Law, Innovation & Tech. 280, 299–300

    (2023) [hereinafter Camacho, In the Anthropocene]. ↑

  11.  See Camacho, In the Anthropocene, supra note 10, at 286, 298–300 (detailing traditional goals of conservation typical in natural resource law and their pitfalls in a changing climate). ↑
  12.  Camacho, De- and Re-Constructing, supra note 10, at 1613 (“The standard public processes used for implementing public biodiversity management and for regulating private activity have not been well structured to promote learning and manage the substantial uncertainties and evolving character of ecological resources.”). ↑
  13.  See id. at 1623–24; see also Camacho, In the Anthropocene, supra note 10, at 303 (arguing that current legal frameworks in Western jurisdictions are not designed to manage complex, transboundary issues like climate change); Alejandro E. Camacho & Robert L. Glicksman, Reorganizing Government: A Functional and Dimensional Framework 200 (2019) (describing increased cross-jurisdictional challenges raised by climate change, such as interjurisdictional spillovers and conflicts). ↑
  14.  A note about the terminology used in this Article. We use the term “tribe” or “tribal” to refer to the 574 federally recognized tribes located within the exterior boundaries of the United States. Indian Entities Recognized by and Eligible to Receive Services from the United States Bureau of Indian Affairs, 89 Fed. Reg. 944 (Jan. 8, 2024). We acknowledge that there are numerous Indigenous groups within the United States that have not been federally recognized for a wide variety of historical and political reasons (e.g., Native Hawaiians). Cohen’s Handbook of Federal Indian Law §§ 3.02, 4.07[4][a], [c] (Nell Jessup Newton et al. eds., 2005) (discussing factors contributing to federal recognition of tribes generally and speaking to the situation of Native Hawaiians specifically). Because this Article focuses on federal law and the federal government’s relationship with tribes, however, we will focus our analysis on federally recognized tribes. When we wish to be more inclusive than federally recognized tribes, we will use the term “Indigenous.” ↑
  15.  We do not use the term “vulnerabilities” to suggest that tribes are victims, or somehow lesser than other communities impacted by climate change. Rather, we use this term to highlight historical and legal differences that combine to make tribal communities often uniquely vulnerable to the impacts of climate change. ↑
  16.  See infra Subsection I.B.1. ↑
  17.  S. James Anaya, Report of the Special Rapporteur on the Rights of Indigenous Peoples on the Situation of Indigenous Peoples in the United States of America, 32 Ariz. J. Int’l & Compar. L. 51, 61 (2015). ↑
  18.  Id. at 59. ↑
  19.  See, e.g., Immigration & Relocation in U.S. History: Native American, Libr. of Cong., https://www.loc.gov/classroom-materials/immigration/native-american/ [https://perma.cc/K‌CK7-QG4L] (last visited Sept. 6, 2024) (explaining that European settlement in North America triggered “disease, starvation, and bloodshed”). ↑
  20.  For a discussion of the use of the word “vulnerability,” see Hans-Martin Füssel, Vulnerability: A Generally Applicable Conceptual Framework for Climate Change Research, 17 Glob. Env’t Change 155, 157–58 (2007) (presenting a framework for understanding the concept of vulnerability through the lens of four different factors: physical, economic, social, and environmental); see also Karen O’Brien, Siri Eriksen, Lynn P. Nygaard & Ane Schjolden, Why Different Interpretations of Vulnerability Matter in Climate Change Discourses, 7 Climate Pol’y 73, 74 (2007) (attempting to organize the varying scholarly definitions of “vulnerability” into one “common framework”). ↑
  21. What Is a Federal Indian Reservation?, U.S. Dep’t of the Interior: Bureau of Indian Affs. (Aug. 19, 2017, 2:53 PM), https://www.bia.gov/faqs/what-federal-indian-reservation [https://‌perma.cc/TUY7-47Y8]. ↑
  22.  See Justin Farrell et al., Effects of Land Dispossession and Forced Migration on Indigenous Peoples in North America, 374 Science, Oct. 29, 2021, at 1, 8, https://www.scien‌ce.org/doi/epdf/10.1126/science.abe4943. ↑
  23.  We would like to avoid traditional stereotypes of American Indians as “Noble Savages” or “Bloodthirsty Savages.” See Rebecca Tsosie, Tribal Environmental Policy in an Era of Self-Determination: The Role of Ethics, Economics, and Traditional Ecological Knowledge, 21 Vt. L. Rev
    .

    225, 270 (1996) (“The problems of cross-cultural interpretation and the attempt to define ‘traditional’ indigenous beliefs raise a common issue: the tendency of non-Indians to glorify Native Americans as existing in ‘perfect harmony’ with nature (the ‘Noble Savage’ resurrected) or, on the other hand, denounce them as being as rapacious to the environment as Europeans (the ‘Bloodthirsty Savage’ resurrected).”). ↑

  24.  Frank Pommersheim, The Reservation as Place: A South Dakota Essay, 34 S.D. L. Rev
    .

    246, 250 (1989); see also Nat’l Cong. of Am. Indians, Resolution EWS-06-004: Supporting a National Mandatory Program to Reduce Climate Change Pollution and Promote Renewable Energy, at 2 (2006 Winter Session), https://archive.ncai.org/attachments/Resolution_KSlvpc‌MnfSafhsDsxFnQcTDKMclEpNfvEPQFCsLlhonOXZrOOXu_EWS-06-004.pdf [https://per‌ma.cc/89XA-Z2K3] (“[C]limate-related changes to the weather, food sources, and local landscapes undermine the social identity and cultural survival of American Indians and Alaska Natives . . . .”). ↑

  25.  Mary Christina Wood & Zachary Welcker, Tribes as Trustees Again (Part I): The Emerging Tribal Role in the Conservation Trust Movement, 32 Harv. Env’t L. Rev. 373, 381 (2008). ↑
  26.  Cohen’s Handbook of Federal Indian Law, supra note 14, § 4.05[1], at 276, § 18.02, at 1122–24. ↑
  27.  See supra note 7. ↑
  28. What Is a Federal Indian Reservation?, supra note 21. ↑
  29.  See Background: Sharing Information & Techniques Nationwide, Native Am. Fish & Wildlife Soc’y, https://www.nafws.org/about/background/ [https://perma.cc/HEJ2-CMPV] (last visited Sept. 6, 2024). ↑
  30.  Cf. Stephen T. Garnett et al., A Spatial Overview of the Global Importance of Indigenous Lands for Conservation, 1 Nature Sustainability 369, 370 (2018) (describing the global importance and value of Indigenous-managed lands in conservation goals); Christopher J. O’Bryan et al., The Importance of Indigenous Peoples’ Lands for the Conservation of Terrestrial Mammals, 35 Conservation Biology 1002, 1006 (2021) (highlighting the importance of Indigenous lands for the conservation of threatened and endangered mammal species globally). ↑
  31.  California v. Cabazon Band of Mission Indians, 480 U.S. 202, 207 (1987) (explaining that states generally do not have the authority to enforce their laws on tribes unless Congress grants them the power). See generally Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832) (holding that the laws of Georgia generally did not apply to Cherokee territory within the state because of tribal sovereignty and federal preemption). ↑
  32.  Camacho & Glicksman, supra note 13, at 34. ↑
  33.  See generally Morgan Hepler & Elizabeth Ann Kronk Warner, Learning from Tribal Innovations: Lessons in Climate Change Adaptation, 49 Env’t L. Rep. 11130 (2019) (discussing how tribal governments can serve as valuable “laboratories” from which other sovereigns can learn); Elizabeth Ann Kronk Warner, Returning to the Tribal Environmental “Laboratory”: An Examination of Environmental Enforcement Techniques in Indian Country, 6 Mich. J. Env’t & Admin. L. 341 (2017) (same); Elizabeth Ann Kronk Warner, Justice Brandeis and Indian Country: Lessons from the Tribal Environmental Laboratory, 47 Ariz. St. L.J. 857 (2015) [hereinafter Kronk Warner, Justice Brandeis and Indian Country] (same); Elizabeth Ann Kronk Warner, Tribes as Innovative Environmental “Laboratories,” 86 U. Colo. L. Rev. 789 (2015) [hereinafter Kronk Warner, Tribes as Innovative Environmental “Laboratories”] (same). ↑

  34.  This recommendation assumes that other sovereigns will acknowledge and respect tribal sovereignty. ↑

Police Vigilantism

This Article uncovers a critical yet unexplored dimension of policing: the strategic oscillation of police officers between their roles as state actors and private individuals, and its significant implications for police accountability frameworks. As officers toggle between these two roles to their legal advantage, they exploit a deep, systemic flaw in the structural design of policing. Tracing the trajectory of policing from its vigilante origins to its institutionalized form today, this Article argues that contemporary policing merges state-sanctioned power with vestiges of vigilantism to blur the public-private divide. This duality enables a form of state-sanctioned vigilantism through which officers exploit legal gray areas. Police wield the state’s coercive power under the color of law, enjoying immunities and legal protections unavailable to private individuals. Yet, simultaneously, they can invoke their identity as private individuals to circumvent constitutional constraints on their conduct.

The resulting rupture of accountability frameworks is a significant design flaw that harms policed individuals and communities while undermining the institution of policing from within. Where these frameworks presume a clear divide between state and private action, officers instead navigate a liminal space, leveraging state-sanctioned power while exploiting doctrinal ambiguities to subvert legal constraints. The Article critically evaluates how the state action doctrine, designed to delineate state and private conduct, fails to account for this reality. So, too, does the qualified immunity doctrine, which often shields vigilante conduct that exceeds constitutional bounds. To address this pressing problem, the Article advocates for a radical reconceptualization of police authority and accountability. It proposes reinterpreting the state action doctrine to break down the dichotomy between state and private action. It suggests implementing comprehensive statutory regulations to constrain police identity shopping. Ultimately, it challenges us to consider whether the entrenched vigilante origins of policing may necessitate a fundamental reevaluation, or even abolition, of the institution of policing itself.

Introduction

In the law of policing, where the expansive authority of the state often intersects and clashes with the boundaries of individual liberty, the dual role of a police officer as both state actor and private citizen presents a unique and currently unidentified legal challenge. Consider this scenario: a police officer, driving home from his night shift, crosses from the city where he works into the township where he lives. Moments later, he observes a young man with a backpack jumping a fence between two residential properties. Acting with probable cause under the citizen’s arrest statute,1 1.These statutes, often codifications of common law, are abundant across jurisdictions. See infra Section II.B. For the concept and history of these statutes and consequent arrests, see generally Ashish Valentine, What Is the Citizen’s Arrest Law at the Heart of the Trial over Ahmaud Arbery’s Death?, NPR (Oct. 26, 2021, 10:39 AM), https://www.npr.org/2021/10/26/‌1048398618/what-is-the-citizens-arrest-law-in-the-trial-over-ahmaud-arberys-death [https://‌perma.cc/5L5V-SXAK]; Chad Flanders, Raina Brooks, Jack Compton & Lyz Riley, The Puzzling Persistence of Citizen’s Arrest Laws and the Need to Revisit Them, 64 How. L.J. 161 (2020); Ira P. Robbins, Vilifying the Vigilante: A Narrowed Scope of Citizen’s Arrest, 25 Cornell J.L. & Pub. Pol’y 557 (2016); Kimberly Kessler Ferzan, Response, Taking Aim at Pointing Guns? Start with Citizen’s Arrest, Not Stand Your Ground: A Reply to Joseph Blocher, Samuel W. Buell, Jacob D. Charles and Darrell A. H. Miller, Pointing Guns, 99 Texas L. Rev. 1172 (2021), 100 Tex. L. Rev. Online 1 (2021) (surveying citizen’s arrest laws around the country).Show More but not the Fourth Amendment,2 2.U.S. Const. amend. IV.Show More the officer pursues the young man, unholsters his department-issued gun, pins him to the ground, and forcibly opens the backpack.3 3.This fictional example is not so fictional, as variations of it have come up in countless cases across jurisdictions. See, e.g., State v. Phoenix, 428 So. 2d 262, 265 (Fla. Dist. Ct. App. 1982) (“In addition to any official power to arrest, police officers also have a common law right as citizens to make so-called citizen’s arrests.”); State v. Slawek, 338 N.W.2d 120, 121 (Wis. Ct. App. 1983) (“An extensive line of cases from other states, however, upholds the validity of an extraterritorial arrest made by a police officer who lacked the official authority to arrest when the place of arrest authorizes a private person to make a citizen’s arrest under the same circumstances.”); State ex rel. State v. Gustke, 516 S.E.2d 283, 290 (W. Va. 1999) (“Even if the officers were without statutory arrest powers as policemen, they retained power as citizens to make an arrest . . . .” (quoting Dodson v. State, 381 N.E.2d 90, 92 (Ind. 1978))); Commonwealth v. Harris, 415 N.E.2d 216, 220 (Mass. App. Ct. 1981) (citing with approval “[a]n extensive line of cases from other states uphold[ing] the validity of an extraterritorial arrest made by a police officer who lacked the official authority to arrest where the place of arrest authorizes a private person to make a ‘citizen’s arrest’ under the same circumstances”).Show More His use of force breaks three of the young man’s ribs. When the young man files a civil rights lawsuit, the officer contends he was acting as a private individual, not a state officer.4 4.See, e.g., Budnick v. Barnstable Cnty. Bar Advocs., Inc., No. 92-1933, 1993 WL 93133, at *3 (1st Cir. Mar. 30, 1993) (“But, ‘a police officer, while unable to act as an officer in an adjoining jurisdiction, does not cease to be a citizen in that jurisdiction . . . .’” (quoting Commonwealth v. Dise, 583 N.E.2d 271, 274 (Mass. App. Ct. 1991))); State v. Miller, 896 P.2d 1069, 1070 (Kan. 1995) (“An officer who makes an arrest without a warrant outside the territorial limits of his or her jurisdiction must be treated as a private person. The officer’s actions will be considered lawful if the circumstances attending would authorize a private person to make the arrest.”).Show More The court agrees, dismissing the civil rights claims.5 5.See, e.g., United States v. Layne, 6 F.3d 396, 398–99 (6th Cir. 1993) (finding arrest made by sheriff outside his geographical jurisdiction valid under private citizen’s arrest statute and thus did not violate Fourth Amendment); State v. Furr, 723 So. 2d 842, 845 (Fla. Dist. Ct. App. 1998) (“[T]he trial court erred by concluding that a citizen’s arrest is nullified where the officer, acting outside of his jurisdiction, uses a marked police car, and otherwise announces his official position.”).Show More

Another night, another town. Two officers respond to a report of an older man shouting outside a local apartment complex. When they arrive, the man whom they believe to be the subject of the call is waving a medium-sized object in the air. The officers’ approach seems to set off the man, and he yells at a higher volume, still waving the object in his hand. At that moment, one of the officers pulls a gun, fires at the man, and kills him. As the man lies dead on the pavement, the officers find headphones still playing music in his ears and an air gun by his arm. When the state attorney brings an indictment for homicide, the officer invokes the state’s stand-your-ground law. He argues that, regardless of the laws governing officer use of force, he had rights as a private citizen to shoot in self-defense.6 6.Unfortunately, this is another not-so-fictional example. For a similar case, see State v. Peraza, 259 So. 3d 728, 729–30 (Fla. 2018).Show More The court agrees and quashes the indictment.7 7.Id. at 733.Show More

Both cases bring to light the ambiguous and often controversial nature of police authority when the roles of state actor and private citizen converge, raising questions of accountability in law enforcement. This Article is the first to systematically identify the existence of these dual identities and the consequent discretionary legal space granted to police officers. I term this phenomenon “identity shopping,” denoting a significant problem in current policing law and doctrine which profoundly impacts accountability structures.8 8.See infra Section II.A.Show More Identity shopping refers to the strategic maneuvering by police officers between their roles as state agents and private citizens, depending on which identity offers the most advantageous legal position in a given situation.9 9.See infra Section II.B.Show More Think of it as a light switch on a dimmer, with “state actor” on one end and “private citizen” on the other. Officers can often slide the switch back and forth, selecting which rules apply to them––the rules governing state actors or those applicable to private individuals.

Identity shopping reflects a deeper systemic issue arising from the inherent structures of policing that allow, and perhaps even encourage, officers to shift between roles to minimize legal repercussions or maximize authority. Drawing from historical insights, this Article traces the evolution of policing from its origins as informal vigilante groups to formally recognized and state-sanctioned law enforcement.10 10.See infra Section I.A.Show More The midcentury professionalization movement and subsequent regulation of the police contributed to the reconceptualization of police from vigilantes to formal state actors.11 11.See Anna Lvovsky, The Judicial Presumption of Police Expertise, 130 Harv. L. Rev. 1995, 2004–05 (2017).Show More This transformation has endowed officers with distinct responsibilities, leading courts to also grant them unique rights, including expanded civil immunities and criminal defenses.12 12.See infra Section II.B.Show More However, this transformation of policing has not been linear but rather a tapestry of conflicting identities and roles, an intersection of past and present, informal authority and formal legitimacy.

This Article demonstrates that this transition from vigilantes to state-sanctioned law enforcement has not fully extinguished the initial ethos of vigilantism within policing. Despite their formal designation as state actors, police maintain a bifurcated identity, traversing the line between public servants and private individuals. This duality permits a latent form of vigilante behavior, now cloaked under state authority.13 13.See id.Show More Termed as “shadow vigilantism,”14 14.See Paul H. Robinson, The Moral Vigilante and Her Cousins in the Shadows, 2015 U. Ill. L. Rev. 401, 453. Robinson juxtaposes “shadow vigilantism” with “classic vigilantism.” Id. at 404. Unlike classic vigilantism, which involves explicitly unlawful or unauthorized action, shadow vigilantism refers to the less obvious and potentially more damaging ways individuals may resist and subvert the legal system. Id. at 453. To be sure, for several scholars vigilantism connotes illegality, but the way this paper defines vigilantism through the use of the term “shadow vigilantism” is wider and can include lawfully authorized activity. See Ekow N. Yankah, Deputization and Privileged White Violence, 77 Stan. L. Rev. (forthcoming 2025) (manuscript at 3–5) (on file with author) (distinguishing between vigilantism and deputization); Regina Bateson, The Politics of Vigilantism, 54 Compar. Pol. Stud. 923, 925–27 (2021) (providing various conceptions of vigilantism).Show More this phenomenon might seem paradoxical: How can those entrusted with upholding the law operate in a way that undermines it? Yet police vigilantism thrives in the gray areas between state action and private conduct, where officers morph into citizens still empowered by their official identity, and private citizens assume the mantle of law enforcement, invoking a privilege to use force.

Officers may use public authority symbols like uniforms and badges to make off-duty arrests, employ deadly force on duty while invoking defenses intended for civilians, or engage in extralegal activities adjacent to law enforcement, all while retaining the ability to choose the most favorable legal identity when confronted with legal accountability.15 15.See infra Section II.B; see, e.g., Laughlin v. Olszewski, 102 F.3d 190, 192 & n.1 (5th Cir. 1996); Abraham v. Raso, 183 F.3d 279, 287 (3d Cir. 1999); Swiecicki v. Delgado, 463 F.3d 489, 490–91 (6th Cir. 2006); Morris v. Dillard Dep’t Stores, Inc., 277 F.3d 743, 746–47 (5th Cir. 2001); Lusby v. T.G. & Y. Stores, Inc., 749 F.2d 1423, 1427–28 (10th Cir. 1984).Show More This interplay of identities thus fosters a dynamic where the imprints of vigilante origins intermittently resurface. As a result, contemporary policing operates within a unique nexus, merging state-sanctioned power with discretionary—sometimes unilateral—approaches reminiscent of its vigilante roots.

This Article contends that the dual identity available to police officers is a significant design flaw in the accountability structures of law enforcement.16 16.See infra Part III.Show More Police accountability frameworks are fundamentally misaligned with the dynamic nature of police identity and are thus inadequate to address the complexities of identity shopping and shadow vigilantism. This systemic oversight creates a gap in police accountability that undermines its efficacy from within.

The existing police accountability system is based on clear demarcations of legal identity and fails to account for entities capable of selecting between private citizenry and state agency. Its basis, the state action doctrine, dictates that only certain actions undertaken by certain actors qualify as state actions and must thus conform to the specific legal constraints but also enjoy the legal immunities of the state.17 17.See infra Section III.A.Show More Yet, identity shopping exploits the cracks in this doctrine, leveraging the nebulous space between official authority and private action. The result is a legal Gordian knot, one that strands victims of police vigilantism in a quagmire of uncertainty and often leaves the very concept of police accountability beyond reach.

Correcting this misalignment requires a radical reconceptualization of police authority and existing accountability frameworks to address the phenomenon of identity shopping and end police vigilantism. This Article proposes reinterpreting the state action doctrine to break down the dichotomy between state and non-state action. It also suggests implementing comprehensive statutory regulations to constrain police identity shopping.18 18.See infra Section III.B.Show More Ultimately, it challenges us to consider whether the entrenched vigilante origins of policing may necessitate a fundamental reevaluation, or even abolition, of the institution of policing itself.19 19.For discussions of fundamentally reevaluating or abolishing policing, see, for example, Jessica M. Eaglin, To “Defund” the Police, 73 Stan. L. Rev. Online 120, 125 (2021); Shawn E. Fields, The Fourth Amendment Without Police, 90 U. Chi. L. Rev. 1023, 1052, 1082 (2023); Sandy Hudson, Building a World Without Police, 69 UCLA L. Rev. 1646, 1649 (2023); Benjamin Levin, Criminal Law Exceptionalism, 108 Va. L. Rev. 1381, 1448 (2022); Jamelia Morgan, Responding to Abolition Anxieties: A Roadmap for Legal Analysis, 120 Mich. L. Rev. 1199, 1203 (2022); V. Noah Gimbel & Craig Muhammad, Are Police Obsolete? Breaking Cycles of Violence Through Abolition Democracy, 40 Cardozo L. Rev. 1453, 1532–34 (2019); Brandon Hasbrouck, Reimagining Public Safety, 117 Nw. U. L. Rev. 685, 692 (2022); Tiffany Yang, “Send Freedom House!”: A Study in Police Abolition, 96 Wash. L. Rev. 1067, 1077–79 (2021); Marbre Stahly-Butts & Amna A. Akbar, Reforms for Radicals? An Abolitionist Framework, 68 UCLA L. Rev. 1544, 1550–51 (2021); Amna A. Akbar, An Abolitionist Horizon for (Police) Reform, 108 Calif. L. Rev. 1781, 1842 (2020) [hereinafter Akbar, An Abolitionist Horizon]; Amna A. Akbar, Toward a Radical Imagination of Law, 93 N.Y.U. L. Rev. 405, 460 (2018) [hereinafter Akbar, Toward a Radical Imagination of Law].Show More

In addressing these points and the challenging terrain of the police’s dual identity, my argument proceeds in three Parts. Part I traces the historical evolution of policing from its vigilante roots to its status as a formal state apparatus. This Part posits that despite the development of a formalized legal status, police often employ a dual identity, combining public servant duties with private discretion in a way that hearkens back to policing’s vigilante origins. Understanding this development is pivotal to identifying how the vestiges of vigilantism continue to influence modern policing practices.

Part II introduces the novel concept of identity shopping. It delves deeper into the practice, arguing that identity shopping results in a form of shadow vigilantism within the modern police force. This Part further demonstrates how our legal system has sanctioned identity shopping across various policing forms, including on-duty and off-duty policing, private policing, and citizen’s arrests. This juxtaposition of sanctioned law enforcement with remnants of vigilante conduct presents a distinct challenge to conventional structures of government oversight and legal accountability.

Part III proposes a radical rethinking of the dual identities of police officers in order to address this unique challenge. It argues that this legal characterization of police officers is a significant design flaw in the frameworks of police accountability and proposes strategies to address this issue, including a way to reconceptualize the state action doctrine, qualified immunity, statutory reforms, and police abolition.

Ultimately, scrutinizing the practices of identity shopping and shadow vigilantism reveals a critical gap in our understanding of policing. It raises fundamental questions about the role of police in a democratic society, the nature and limits of state authority, and the responsibilities of those who wield it. It grapples with the complex dynamics between formal policing roles and individual discretion, revealing the implications for governance and individual rights. And it contributes to the abolitionist discourse by demonstrating that modern policing and the legal frameworks that govern it continue to permit the unchecked use of state-sanctioned violence akin to the vigilantes of the early republic or the street vigilantes of today.

  1.  These statutes, often codifications of common law, are abundant across jurisdictions. See infra Section II.B. For the concept and history of these statutes and consequent arrests, see generally Ashish Valentine, What Is the Citizen’s Arrest Law at the Heart of the Trial over Ahmaud Arbery’s Death?, NPR (Oct. 26, 2021, 10:39 AM), https://www.npr.org/2021/10/26/‌1048398618/what-is-the-citizens-arrest-law-in-the-trial-over-ahmaud-arberys-death [https://‌perma.cc/5L5V-SXAK]; Chad Flanders, Raina Brooks, Jack Compton & Lyz Riley, The Puzzling Persistence of Citizen’s Arrest Laws and the Need to Revisit Them, 64 How. L.J. 161 (2020); Ira P. Robbins, Vilifying the Vigilante: A Narrowed Scope of Citizen’s Arrest, 25 Cornell J.L. & Pub. Pol’y 557 (2016); Kimberly Kessler Ferzan, Response, Taking Aim at Pointing Guns? Start with Citizen’s Arrest, Not Stand Your Ground: A Reply to Joseph Blocher, Samuel W. Buell, Jacob D. Charles and Darrell A. H. Miller, Pointing Guns, 99 Texas L. Rev. 1172 (2021), 100 Tex. L. Rev. Online 1 (2021) (surveying citizen’s arrest laws around the country). ↑
  2.  U.S. Const. amend. IV. ↑
  3.  This fictional example is not so fictional, as variations of it have come up in countless cases across jurisdictions. See, e.g., State v. Phoenix, 428 So. 2d 262, 265 (Fla. Dist. Ct. App. 1982) (“In addition to any official power to arrest, police officers also have a common law right as citizens to make so-called citizen’s arrests.”); State v. Slawek, 338 N.W.2d 120, 121 (Wis. Ct. App. 1983) (“An extensive line of cases from other states, however, upholds the validity of an extraterritorial arrest made by a police officer who lacked the official authority to arrest when the place of arrest authorizes a private person to make a citizen’s arrest under the same circumstances.”); State ex rel. State v. Gustke, 516 S.E.2d 283, 290 (W. Va. 1999) (“Even if the officers were without statutory arrest powers as policemen, they retained power as citizens to make an arrest . . . .” (quoting Dodson v. State, 381 N.E.2d 90, 92 (Ind. 1978))); Commonwealth v. Harris, 415 N.E.2d 216, 220 (Mass. App. Ct. 1981) (citing with approval “[a]n extensive line of cases from other states uphold[ing] the validity of an extraterritorial arrest made by a police officer who lacked the official authority to arrest where the place of arrest authorizes a private person to make a ‘citizen’s arrest’ under the same circumstances”). ↑
  4.  See, e.g., Budnick v. Barnstable Cnty. Bar Advocs., Inc., No. 92-1933, 1993 WL 93133, at *3 (1st Cir. Mar. 30, 1993) (“But, ‘a police officer, while unable to act as an officer in an adjoining jurisdiction, does not cease to be a citizen in that jurisdiction . . . .’” (quoting Commonwealth v. Dise, 583 N.E.2d 271, 274 (Mass. App. Ct. 1991))); State v. Miller, 896 P.2d 1069, 1070 (Kan. 1995) (“An officer who makes an arrest without a warrant outside the territorial limits of his or her jurisdiction must be treated as a private person. The officer’s actions will be considered lawful if the circumstances attending would authorize a private person to make the arrest.”). ↑
  5.  See, e.g., United States v. Layne, 6 F.3d 396, 398–99 (6th Cir. 1993) (finding arrest made by sheriff outside his geographical jurisdiction valid under private citizen’s arrest statute and thus did not violate Fourth Amendment); State v. Furr, 723 So. 2d 842, 845 (Fla. Dist. Ct. App. 1998) (“[T]he trial court erred by concluding that a citizen’s arrest is nullified where the officer, acting outside of his jurisdiction, uses a marked police car, and otherwise announces his official position.”). ↑
  6.  Unfortunately, this is another not-so-fictional example. For a similar case, see State v. Peraza, 259 So. 3d 728, 729–30 (Fla. 2018). ↑
  7.  Id. at 733. ↑
  8.  See infra Section II.A. ↑
  9.  See infra Section II.B. ↑
  10.  See infra Section I.A. ↑
  11.  See Anna Lvovsky, The Judicial Presumption of Police Expertise, 130 Harv. L. Rev. 1995, 2004–05 (2017). ↑
  12.  See infra Section II.B. ↑
  13.  See id. ↑
  14.  See Paul H. Robinson, The Moral Vigilante and Her Cousins in the Shadows, 2015 U. Ill. L. Rev. 401, 453. Robinson juxtaposes “shadow vigilantism” with “classic vigilantism.” Id. at 404. Unlike classic vigilantism, which involves explicitly unlawful or unauthorized action, shadow vigilantism refers to the less obvious and potentially more damaging ways individuals may resist and subvert the legal system. Id. at 453. To be sure, for several scholars vigilantism connotes illegality, but the way this paper defines vigilantism through the use of the term “shadow vigilantism” is wider and can include lawfully authorized activity. See Ekow N. Yankah, Deputization and Privileged White Violence, 77 Stan. L. Rev. (forthcoming 2025) (manuscript at 3–5) (on file with author) (distinguishing between vigilantism and deputization); Regina Bateson, The Politics of Vigilantism, 54 Compar. Pol. Stud. 923, 925–27 (2021) (providing various conceptions of vigilantism). ↑
  15.  See infra Section II.B; see, e.g., Laughlin v. Olszewski, 102 F.3d 190, 192 & n.1 (5th Cir. 1996); Abraham v. Raso, 183 F.3d 279, 287 (3d Cir. 1999); Swiecicki v. Delgado, 463 F.3d 489, 490–91 (6th Cir. 2006); Morris v. Dillard Dep’t Stores, Inc., 277 F.3d 743, 746–47 (5th Cir. 2001); Lusby v. T.G. & Y. Stores, Inc., 749 F.2d 1423, 1427–28 (10th Cir. 1984). ↑
  16.  See infra Part III. ↑
  17.  See infra Section III.A. ↑
  18.  See infra Section III.B. ↑

  19.  For discussions of fundamentally reevaluating or abolishing policing, see, for example, Jessica M. Eaglin, To “Defund” the Police, 73 Stan. L. Rev. Online 120, 125 (2021); Shawn E. Fields, The Fourth Amendment Without Police, 90 U. Chi. L. Rev. 1023, 1052, 1082 (2023); Sandy Hudson, Building a World Without Police, 69 UCLA L. Rev. 1646, 1649 (2023); Benjamin Levin, Criminal Law Exceptionalism, 108 Va. L. Rev. 1381, 1448 (2022); Jamelia Morgan, Responding to Abolition Anxieties: A Roadmap for Legal Analysis, 120 Mich. L. Rev. 1199, 1203 (2022); V. Noah Gimbel & Craig Muhammad, Are Police Obsolete? Breaking Cycles of Violence Through Abolition Democracy, 40 Cardozo L. Rev. 1453, 1532–34 (2019); Brandon Hasbrouck, Reimagining Public Safety, 117 Nw. U. L. Rev. 685, 692 (2022); Tiffany Yang, “Send Freedom House!”: A Study in Police Abolition, 96 Wash. L. Rev. 1067, 1077–79 (2021); Marbre Stahly-Butts & Amna A. Akbar, Reforms for Radicals? An Abolitionist Framework, 68 UCLA L. Rev. 1544, 1550–51 (2021); Amna A. Akbar, An Abolitionist Horizon for (Police) Reform, 108 Calif. L. Rev. 1781, 1842 (2020) [hereinafter Akbar, An Abolitionist Horizon]; Amna A. Akbar, Toward a Radical Imagination of Law, 93 N.Y.U. L. Rev. 405, 460 (2018) [hereinafter Akbar, Toward a Radical Imagination of Law]. ↑

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