Home Slideshow

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. ↑

Disrupting Election Day: Reconsidering the Purcell Principle as a Federalism Doctrine

The Purcell Principle—the doctrine that courts should refrain from changing election rules during the period of time close to an election—has long been misconstrued. Where the Principle operates, it creates a near-categorical bar to federal judicial relief in the upcoming election cycle; the provisions of federal law that would normally safeguard voting rights, govern redistricting, and supervise how a state can conduct its elections are paralyzed until after election day. Born and raised on the shadow docket, the Principle has been underdeveloped by the Supreme Court. The Court has provided little guidance as to what triggers the Principle or how it will be applied in future cases. And, in recent years, the doctrine has become increasingly powerful in shaping election law. With the 2024 elections quickly approaching, this Note seeks to shed light on Purcell.

The goals of this Note are twofold. First, I suggest that courts and scholars have been thinking about Purcell incorrectly. I argue that Purcell cannot be justified on the grounds of preventing voter confusion—as the case law and scholarship have suggested—but instead is better explained by federalism. Under this conception, the Court’s historic applications of the doctrine make more sense. Second, I provide a new framework for understanding what triggers Purcell. In deciding whether the Purcell Principle should be applied, courts would reach more consistent, analytically sound results by asking whether judicial intervention would disrupt a state’s administration of its elections. I provide four conditions for courts to consider in determining whether injunctive relief is disruptive. But these conditions can also provide insight to future litigants making decisions about where, when, and how to bring their election claims to avoid running into Purcell’s snare.

Introduction

On January 24, 2022, two decisions1 1.Singleton v. Merrill, 582 F. Supp. 3d 924, 936 (N.D. Ala. 2022) (per curiam),aff’d sub nom. Allen v. Milligan, 143 S. Ct. 1487 (2023); Caster v. Merrill, No. 21-cv-01536, 2022 WL 264819, at *3 (N.D. Ala. Jan. 24, 2022), aff’d sub nom. Allen, 143 S. Ct. 1487.Show More of the U.S. District Court for the Northern District of Alabama held that the districting plan adopted by the State of Alabama for its 2022 congressional elections was “substantially likely” to violate Section 2 of the Voting Rights Act (“VRA”).2 2.Singleton, 582 F. Supp. 3d at 936.Show More The court preliminarily enjoined Alabama from using that map in the forthcoming election and required the state legislature to enact a new plan with a second Black-majority congressional district.3 3.Id.Show More

Two weeks later, and some nine months before the general election, however, the U.S. Supreme Court stayed the district court’s decision, authorizing Alabama to nevertheless move forward with its tarnished map in November.4 4.Merrill v. Milligan, 142 S. Ct. 879, 879 (2022) (mem.).Show More The only rationale provided for this stay came not from the Court—which issued an unexplained, unsigned order on its shadow docket5 5.Id. Professor William Baude coined the term “shadow docket” to describe “everything other than the Court’s ‘merits docket.’” Stephen Vladeck, The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic, at xii (2023); see also William Baude, Foreword: The Supreme Court’s Shadow Docket, 9 N.Y.U. J.L. & Liberty 1, 1 (2015) (pointing to “a range of orders and summary decisions that defy its normal procedural regularity”).Show More—but a concurrence from Justice Kavanaugh.6 6.Merrill, 142 S. Ct. at 879–82 (Kavanaugh, J., concurring in grant of applications for stays, joined by Alito, J.).Show More His basis for lifting the injunction rested on the Purcell Principle, a “bedrock tenet of election law” instructing that “federal district courts ordinarily should not enjoin state election laws in the period close to an election” and “federal appellate courts should stay injunctions when . . . lower federal courts contravene that principle.”7 7.Id. at 879–80.Show More

The effect of the Court’s order was to allow the map to apply to the 2022 elections, but with future elections governed by its decision on the merits.8 8.Id. at 882.Show More The map, enacted by a Republican-controlled legislature and signed by a Republican governor,9 9.Caster v. Merrill, No. 21-cv-01536, 2022 WL 264819, at *14–15 (N.D. Ala. Jan. 24, 2022); Brian Lyman, Gov. Kay Ivey Signs Off on Alabama Congressional, Legislative, SBOE Maps for 2022, Montgomery Advertiser (Nov. 4, 2021, 3:30 PM), https://www.montgomery‌advertiser.com/story/news/2021/11/03/alabama-congressional-state-house-maps-2022-heade‌d-gov-kay-ivey/6258353001/ [https://perma.cc/RBY9-WLDR].Show More produced a safe Republican seat as opposed to one that likely would have elected a Democrat.10 10.Melissa Murray & Steve Vladeck, The Supreme Court’s Voting Rights Act Ruling Is No Victory for Democracy, Wash. Post (June 8, 2023, 9:28 PM), https://www.washingtonpost.‌com/opinions/2023/06/08/supreme-court-alabama-redistricting-voting-rights-act/ [https://per‌ma.cc/EB4X-9HYG].Show More So on election day—as expected without the additional Black-majority district—six Republicans and one Democrat were elected to the U.S. House of Representatives from Alabama.11 11.State of Ala., Canvass of Results: General Election, November 8, 2022, at 15–28 (2022), https://www.sos.alabama.gov/sites/default/files/election-data/2022-11/Final%20Canvass%2‌0of%20Results%20%28canvassed%20by%20state%20canvassing%20board%2011-28-2022‌%29.pdf [https://perma.cc/5GRV-D9GD].Show More

But months after the election had been held, the Supreme Court reversed course. A majority affirmed the district court’s decisions and agreed that Alabama’s plan was indeed unlawful.12 12.See Allen v. Milligan, 143 S. Ct. 1487, 1498 (2023).Show More As a result, the invocation of Purcell provided the State with a one-time get-out-of-jail-free card; the Court allowed Alabama to use its map in the 2022 midterms before an adverse decision later on the merits. Scholars have criticized the Court’s use of the Purcell Principle—both on theoretical grounds and its application in this case specifically.13 13.See Vladeck, supra note 5, at 226–27 (arguing that the Court has applied Purcell “inconsistently, and in a way that outwardly favors Republicans far more often than it does Democrats”). See generally Steve Vladeck, 31. Emergency Applications and the Merits, One First (June 12, 2023), https://stevevladeck.substack.com/p/31-emergency-applications-and-the [https://perma.cc/XT2Q-LLAT]; Ruoyun Gao, Note, Why the Purcell Principle Should Be Abolished, 71 Duke L.J. 1139 (2022); Harry B. Dodsworth, The Positive and Negative Purcell Principle, 2022 Utah L. Rev. 1081; Richard L. Hasen, Reining in the Purcell Principle, 43 Fla. St. U. L. Rev. 427 (2016); Michael T. Morley, Election Emergencies: Voting in Times of Pandemic, 80 Wash. & Lee L. Rev.359, 425–28 (2023); Wilfred U. Codrington III, Purcell in Pandemic, 96 N.Y.U. L. Rev. 941 (2021).Show More Indeed, some have even argued that the Republican Party owes its control of the House of Representatives in the 118th Congress to the Supreme Court’s intervention in redistricting actions like this one leading up to the 2022 elections.14 14.Murray & Vladeck, supra note 10.Show More

That the Purcell Principle is controversial is perhaps unsurprising. When the Principle operates, it creates a “presumptive categorical bar”15 15.Morley, supra note 13, at 427; see also Hasen, supra note 13, at 443 (referring to Purcell as “a per se rule to not allow last-minute judicial changes to election rules”). Justice Kavanaugh has also recognized that the “Court’s opinions, including Purcell itself, could be read to imply that the principle is absolute and that a district court may never enjoin a State’s election laws in the period close to an election.” Merrill v. Milligan, 142 S. Ct. 879, 881 (2022) (Kavanaugh, J., concurring in grant of applications for stays, joined by Alito, J.).Show More to federal judicial relief in the upcoming election cycle. The provisions of both federal constitutional and statutory law that would normally protect voting rights, govern redistricting, and otherwise supervise how a state can conduct its elections are essentially put on hold until after the election at hand. Given the severity and categorical nature of its effect, great weight is thus placed on what triggers application of the Purcell Principle.

I argue that what should trigger Purcell is disruption to a state’s administration of its elections. This conception is different from that of other scholars and jurists, who claim that the Principle is guided by concerns of voter confusion. But disruption alone does not tell the full story either. Understanding Purcell also requires bringing to light the constitutional theory that is underlying the doctrine: federalism16 16.Federalism can broadly be defined as “[t]he legal relationship and distribution of power between the national and regional governments within a federal system of government, and in the United States particularly, between the federal government and the state governments.” Federalism, Black’s Law Dictionary (11th ed. 2019).Show More (as applied here, the idea that decisions about election procedures are primarily the province of the states).

Even though Purcell is supposedly about confusion—indeed, everyone says as much—this Note will demonstrate that rationale does not adequately explain the case law. In practice, the Supreme Court’s applications of the Principle are better rationalized by federalism and disruption; both are necessary to trigger Purcell. Viewing Purcell as a part of the Court’s commitment to federalism is important not only to explain when and why the Principle should be invoked, but it also harmonizes this doctrine with the Roberts Court’s jurisprudence in other areas of election law and beyond. Further, because application of the Principle will effectively neuter election law in the federal courts for a given election cycle, my proposed disruption framework is useful to future litigants making strategic decisions about where, when, and how to bring their claims.

On their face, the Supreme Court’s applications of Purcell may seem partisan. Professor Steve Vladeck, for example, has characterized the Purcell Principle as “[h]ow the [c]urrent Court [u]ses the Shadow Docket to [h]elp Republicans.”17 17.Vladeck, supra note 5, at vii. In May 2024, however, the Supreme Court applied Purcell to hand what appeared to be a victory to Democrats—staying a district court injunction that paved the way for Louisiana to use a redistricting map with an additional majority-Black district in November. See Robinson v. Callais, 144 S. Ct. 1171, 1171 (2024) (mem.); Nina Totenberg, Supreme Court Upholds Louisiana Redistricting Plan, NPR (May 15, 2024, 6:44 PM), https://www.npr.org/2024/05/15/1250937356/supreme-court-louisiana-redistricti‌ng [https://perma.cc/E8Y9-RDL8].Show More And Professor Wilfred Codrington has described it as “an empty vessel for unprincipled decisionmaking and inconsistent rulings.”18 18.Codrington, supra note 13, at 941.Show More But this Note suggests there may be an unarticulated rationale that better accounts for the Court’s decisions in this area. In doing so, I do not purport that this is the “true” motivation guiding Purcell or what individual Justices are necessarily thinking. Rather, this Note offers federalism as an alternate, novel ground in a framework that seeks to make the Court’s applications of the Principle more coherent. If you reconsider Purcell as a federalism principle with me and read these cases through the lens of disruption, you just might be disabused of your cynicism.

This Note proceeds in three Parts. Part I introduces the origins of the Purcell Principle and its professed rationales: preventing voter confusion, providing clear guidance to the states, and deferring to the district court. It then surveys the development of the doctrine by reviewing each case in which the Supreme Court has applied the Purcell Principle or otherwise discussed it. Part II then analyzes whether the three rationales announced in Purcell are supported by the subsequent case law. (This Note contends they aren’t.) Having chipped away at those rationales, Part III argues that the Principle is better understood as being justified by the Court’s concerns with federalism. Federalism requires insulating to some degree the ability of the state to dictate the rules that govern its elections. If Purcell is defined by the power of federal courts vis-à-vis the states, the Court’s historic applications of the Principle and the Principle’s limits make more sense. Reconceptualizing the doctrine in this way, I propose a new framework to explain what should trigger Purcell. In deciding whether the Principle ought to be applied, courts would reach more consistent, analytically sound results by asking whether judicial intervention would disrupt a state’s administration of its elections. If an order changing the election rules or procedures would be disruptive, the Principle is invoked and operates as a near-total bar on judicial relief. But where intervention wouldn’t be disruptive, Purcell does not govern and a federal court’s decision to enjoin that state procedure is permissible. I conclude by proposing four conditions necessary for finding disruption, which courts can look to in determining whether the Principle should be applied in a given case.

  1.  Singleton v. Merrill, 582 F. Supp. 3d 924, 936 (N.D. Ala. 2022) (per curiam), aff’d sub nom. Allen v. Milligan, 143 S. Ct. 1487 (2023); Caster v. Merrill, No. 21-cv-01536, 2022 WL 264819, at *3 (N.D. Ala. Jan. 24, 2022), aff’d sub nom. Allen, 143 S. Ct. 1487. ↑
  2.  Singleton, 582 F. Supp. 3d at 936. ↑
  3.  Id. ↑
  4.  Merrill v. Milligan, 142 S. Ct. 879, 879 (2022) (mem.). ↑
  5.  Id. Professor William Baude coined the term “shadow docket” to describe “everything other than the Court’s ‘merits docket.’” Stephen Vladeck, The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic, at xii (2023); see also William Baude, Foreword: The Supreme Court’s Shadow Docket, 9 N.Y.U. J.L. & Liberty 1, 1 (2015) (pointing to “a range of orders and summary decisions that defy its normal procedural regularity”). ↑
  6.  Merrill, 142 S. Ct. at 879–82 (Kavanaugh, J., concurring in grant of applications for stays, joined by Alito, J.). ↑
  7.  Id. at 879–80. ↑
  8.  Id. at 882. ↑
  9.  Caster v. Merrill, No. 21-cv-01536, 2022 WL 264819, at *14–15 (N.D. Ala. Jan. 24, 2022); Brian Lyman, Gov. Kay Ivey Signs Off on Alabama Congressional, Legislative, SBOE Maps for 2022, Montgomery Advertiser (Nov. 4, 2021, 3:30 PM), https://www.montgomery‌advertiser.com/story/news/2021/11/03/alabama-congressional-state-house-maps-2022-heade‌d-gov-kay-ivey/6258353001/ [https://perma.cc/RBY9-WLDR]. ↑
  10.  Melissa Murray & Steve Vladeck, The Supreme Court’s Voting Rights Act Ruling Is No Victory for Democracy, Wash. Post (June 8, 2023, 9:28 PM), https://www.washingtonpost.‌com/opinions/2023/06/08/supreme-court-alabama-redistricting-voting-rights-act/ [https://per‌ma.cc/EB4X-9HYG]. ↑
  11.  State of Ala., Canvass of Results: General Election, November 8, 2022, at 15–28 (2022), https://www.sos.alabama.gov/sites/default/files/election-data/2022-11/Final%20Canvass%2‌0of%20Results%20%28canvassed%20by%20state%20canvassing%20board%2011-28-2022‌%29.pdf [https://perma.cc/5GRV-D9GD]. ↑
  12.  See Allen v. Milligan, 143 S. Ct. 1487, 1498 (2023). ↑
  13.  See Vladeck, supra note 5, at 226–27 (arguing that the Court has applied Purcell “inconsistently, and in a way that outwardly favors Republicans far more often than it does Democrats”). See generally Steve Vladeck, 31. Emergency Applications and the Merits, One First (June 12, 2023), https://stevevladeck.substack.com/p/31-emergency-applications-and-the [https://perma.cc/XT2Q-LLAT]; Ruoyun Gao, Note, Why the Purcell Principle Should Be Abolished, 71 Duke L.J. 1139 (2022); Harry B. Dodsworth, The Positive and Negative Purcell Principle, 2022 Utah L. Rev. 1081; Richard L. Hasen, Reining in the Purcell Principle, 43 Fla. St. U. L. Rev. 427 (2016); Michael T. Morley, Election Emergencies: Voting in Times of Pandemic, 80 Wash. & Lee L. Rev.

    359, 425–28 (2023); Wilfred U. Codrington III, Purcell in Pandemic, 96 N.Y.U. L. Rev. 941 (2021). ↑

  14.  Murray & Vladeck, supra note 10. ↑
  15.  Morley, supra note 13, at 427; see also Hasen, supra note 13, at 443 (referring to Purcell as “a per se rule to not allow last-minute judicial changes to election rules”). Justice Kavanaugh has also recognized that the “Court’s opinions, including Purcell itself, could be read to imply that the principle is absolute and that a district court may never enjoin a State’s election laws in the period close to an election.” Merrill v. Milligan, 142 S. Ct. 879, 881 (2022) (Kavanaugh, J., concurring in grant of applications for stays, joined by Alito, J.). ↑
  16.  Federalism can broadly be defined as “[t]he legal relationship and distribution of power between the national and regional governments within a federal system of government, and in the United States particularly, between the federal government and the state governments.” Federalism, Black’s Law Dictionary (11th ed. 2019). ↑
  17.  Vladeck, supra note 5, at vii. In May 2024, however, the Supreme Court applied Purcell to hand what appeared to be a victory to Democrats—staying a district court injunction that paved the way for Louisiana to use a redistricting map with an additional majority-Black district in November. See Robinson v. Callais, 144 S. Ct. 1171, 1171 (2024) (mem.); Nina Totenberg, Supreme Court Upholds Louisiana Redistricting Plan, NPR (May 15, 2024, 6:44 PM), https://www.npr.org/2024/05/15/1250937356/supreme-court-louisiana-redistricti‌ng [https://perma.cc/E8Y9-RDL8]. ↑

  18.  Codrington, supra note 13, at 941. ↑

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]. ↑

©Virginia Law Review Association. All rights reserved.