Immigration Article of the Day: Native Nations, Noncitizens, and the Supremacy Clause

Native Nations, Noncitizens, and the Supremacy Clause by Geoffrey Hereen, 91 Brooklyn Law Review (forthcoming)

Abstract

Native Nations and noncitizens have often prevailed in the face of adverse state action by asserting treaty rights, arguing that state actions are preempted by federal authority, or relying on federal common law. These claims are largely rooted in the Supremacy Clause of the United States Constitution, rather than Native Nations' or noncitizens' rights of their own. At the same time, the Supremacy Clause jurisprudence that developed as Native Nations and noncitizens raised these claims coincided with the growth of federal “plenary power” in both areas, depriving immigrants and Native Nations of strong rights of their own when faced with federal action.