As Kouslaa Kessler-Mata notes, in 1832 the Supreme Court of the United States stated that longstanding government practices “manifestly consider the several Indian nations as distinct political communities, having territorial boundaries, within which their authority is exclusive . . . [these rights are] not only acknowledged, but guaranteed, by the United States” (p. 70). Citing Emer de Vattel, the Court invoked the “sovereignty” of Indian tribes under the law of nations, holding that they were in a political relationship of alliance with the federal government only, and not the states or localities. As Kessler-Mata rightly points out in her bold and textured new book, Indian tribes have worked for a long time to put this vision of sovereignty into practice (p. ix). Despite these long efforts and the centrality of sovereignty to much of present American Indian political and legal discourse, however, she argues that it is time to let the concept go. Indian tribes, she claims, would better secure political and cultural non-domination by integrating themselves more clearly into the American federal order.

This is a challenging position, and Kessler-Mata acknowledges that it is often uncomfortable to make such arguments (pp. x–xi) when the language of sovereignty remains central to so many political efforts. Yet she asserts that the essence of sovereignty was long ago lost in practice. Sovereignty’s failure began with the 1886 case of U.S. v. Kagama (pp. 71–72), which ruled that Congress had “plenary power” over Indian tribes, who should be understood as deeply dependent communities under the guardianship of the United States. This plenary—literally unlimited—power of Congress could not be limited by the courts, nor subject to any limitations beyond the judgments of Congress itself. The “sovereignty” of Indian tribes thus existed only where Congress had chosen to leave it intact. Strikingly for those encountering Indian law for the first time, the doctrine of Congressional plenary power remains in place today, such that “tribal polities remain in an ambiguous structural position where federal actors are permitted to interfere arbitrarily and exercise domination over tribes” (p. 4).

In Kessler-Mata’s view, there is no meaningful way to decouple the invocation of tribal sovereignty from this doctrine of Congressional plenary power. Each assertion of sovereignty calls attention back to the federal-tribal relationship, and to the supposed protective role of Congress in acting as the “guardian” for tribes—according to its own best judgment. Congress may act in beneficial ways, but it may just as often act harmfully, and in either case tribal nations are subject to whatever its whims may be. The modern era of self-government may vanish at any moment, to be replaced by attempts to terminate the legal existence of tribes once and for all, or by something entirely new and unpredictable. Congressional plenary power thus “provides the seeds of instability in Indian affairs” (p. 65), which must be overcome if tribes are to exercise truly meaningful forms of decision making over the long term.

Drawing on the work of Philip Pettit, Kessler-Mata argues that what is ultimately needed is a new theoretical conception of tribal self-determination that focuses on the ways in which political relationships prevent arbitrary patterns of domination, rather than on a sovereignty that evokes a political independence that is in fact “impossible to attain” (p. 9). She argues instead for incorporation of tribes within the American federalist order, with special attention to their interactions with states and other non-federal governments. She maintains that the continued deepening of relationships with non-federal governments will enhance the predictability of tribal political life by making it more difficult for Congress to act arbitrarily. “The stronger the institutional and political relationship between tribes and non-federal governments, she insists, “the weaker the plenary authority of Congress to act in Indian affairs will be” (p. 73). Insofar as states develop procedures for working with tribes and shape policy on that basis, sudden changes by the federal government will be met not only with the opposition of tribes, but of the states as well.

Kessler-Mata argues that a focus on federalist relationships describes the on-the-ground practice of Indian self-determination better than visions of sovereignty can. As she makes clear, tribes and states are already embedded in dense interrelationships, sometimes as a response to federal policies (e.g., the Indian Gaming Regulatory Act), but often as free-standing responses to specific shared challenges (pp. 48–50). Drawing on case studies including the Denali Commission in Alaska, Kessler-Mata maintains that relationships between tribal members and state institutions can often facilitate coordination and information-sharing, turning potentially zero-sum conflicts into positive-sum cooperation (pp. 56–61). Perhaps most importantly, institutional linkages can prevent many disagreements from spilling over into the broader public sphere, where the media’s focus on contention often brings out racialized opposition to tribal goals (pp. 58–61). Such state-tribal interaction exists in the absence of clear legal or normative theories of their operation, however, and they are often viewed with suspicion by scholars of Indian law as weakening the prospects for sovereignty. Kessler-Mata argues that a revised focus on interdependence rather than political separation can put these fears to rest: meaningful self-determination is more readily achieved through federalist relationships that acknowledge interrelationships than through arguments about sovereignty that deny them.

As a scholar, I am not convinced that sovereignty and plenary power are as unavoidably linked in federal policy as Kessler-Mata argues, nor that moving away from the aspiration toward sovereignty would thereby weaken the plenary power doctrine. Her empirical evidence for this connection relies on the historical correlation between the language of sovereignty and the doctrine of plenary power, but it is not clear to me that any deeper connection exists between them of either a causal or conceptual kind. While the modern era of tribal self-determination policy (from the 1970s onward) has not abolished the doctrine of plenary power, it has arguably reduced the in-practice arbitrariness of most policy decisions. Arguments from tribes about their sovereignty have increased in this period, rather than decreased, and this correlation with positive developments also deserves acknowledgement. Nor is it obvious that tribes need to turn away from the language of sovereignty to better interact with state governments, given the documentation that Kessler-Mata provides about already-existing relationships. As an argument about effective political strategies, then, I think Kessler-Mata has not yet provided sufficient evidence for abandoning the imperfect leverage that sovereignty talk allows, though it is sufficient to give me a great deal of pause in my former confidence about its value.

The book is strongest in illustrating the normative and analytic value of turning from sovereignty’s vision of sharp political separation toward interdependence and on-the-ground federalism. As Kessler-Mata documents, Indian nations already live politically intertwined with non-Indian people and governments, and it is essential that tools exist for evaluating these relationships, rather than simply rejecting them out of hand (p. 88). Moreover, as she notes, many members of Indian tribes also see themselves as citizens of the surrounding states (pp. 83–84, pp. 103–104). She argues that acknowledgement of interdependence and overlapping loyalties does not mean that Indian self-determination has failed, but rather that new theoretical models are necessary if it is to be secured over the long term. If correct, this means that scholars of Indian law, political theorists, and political scientists have much work yet to do in building tools to catch up with current practice, and to evaluate how this practice can fare best moving forward. Kessler-Mata has issued a challenge with which all future scholarship on tribal self-rule will have to grapple.