Bears Ears National Monument, as proclaimed by President Obama in 2016, realized a bold vision of cooperation between the executive branch and Native nations by elevating a coalition of Native nations as co-managers of a national monument. This proposed system of collaborative management relied on a broad interpretation of the executive branch’s power to subdelegate authority—that is, to redelegate authority delegated to it by Congress—to Native nations. While the Supreme Court has explained that the nondelegation doctrine imposes fewer restrictions on Congress’s ability to delegate when it shares power with Native nations than it would for delegations to nonsovereign entities outside the federal government, the Court has provided no similar guidance for executive subdelegations to Native nations. Lower federal courts similarly have failed to develop a unified approach. They have disagreed on whether Native nations’ inherent powers justify treating them differently from other subdelegatees.

This Note presents a new understanding of the legality of the executive branch’s efforts to share its power with Native nations by synthesizing the Supreme Court’s recognition of Congress’s ability to affirm tribal sovereignty, the subdelegation doctrine as articulated by lower federal courts, and the executive branch’s history of combining federal and tribal authority. In doing so, this Note describes a new application of the subdelegation doctrine for Native nations: When federal agencies engage in sovereignty-affirming subdelegations—subdelegations that affirm tribal sovereignty by intermingling federal and tribal power—they should be presumed to have acted permissibly unless Congress has expressed a contrary intent. Finally, this Note proposes a framework of analysis and a judicial test so courts may recognize when the executive branch has performed a sovereignty-affirming subdelegation.

* J.D. Candidate, Stanford Law School, 2020. I would like to thank Gregory Ablavsky for his thoughtful feedback, encouragement, and great patience throughout the drafting process. Many thanks to Anne Joseph O’Connell for her insightful comments, and special thanks to the Sovereignty Symposium for including an earlier version of this Note. This Note benefitted tremendously from the excellent and incisive work of Nicole Collins, Esthena Barlow, Lori Ding, Thomas Schubert, Wesley DeVoll, Diana Li, Tara Ohrtman, Samuel Telzak, and Michelle Zhao at the Stanford Law Review.