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Originally published April 20, 2023 Ethnic cleansing is the systematic intimidation or forced removal of ethnic, racial, or religious groups from an area to make that area more homogenous.[1] The intertwined emergence of international criminal law and international humanitarian law at the same time as major ethnic cleansing campaigns (often overlapping with genocide) conducted by the Ottoman Empire, Nazi Germany, and the Soviet Union resulted in an international effort to criminalize elements of ethnic cleansing.[2] The Apartheid Convention attempted to criminalize apartheid in the 1970s, which had elements of ethnic cleansing—notably forced expulsion and homogenization—but fell short with a mere 26 signatories and little real world effect.[3] After the end of the Cold War, ethnic cleansing in Yugoslavia[4] prompted the international community to create the Rome Statute and the International Criminal Court to permanently criminalize genocide, war crimes, and crimes against humanity.[5] Although elements of ethnic cleansing campaigns, like massacres and forced expulsions were criminalized in international criminal law, ethnic cleansing was not created as a freestanding crime.[6] Regrettably, ethnic cleansing has continued at an alarming rate around the world since the time the Rome Statute was adopted.[7] New Draft articles on Prevention and Punishment of Crimes Against Humanity propose to close loopholes in existing enforcement of crimes against humanity, yet have not proposed a freestanding crime of ethnic cleansing.[8] The development of the Draft articles more than 20 years after the Rome Statute entered into force suggests that there is a continued appetite to create new international criminal law, which may result in the creation of a freestanding crime of ethnic cleansing in the future. Ethnic cleansing is more useful as a concept than as a freestanding crime. International criminal law can be used to punish and deter ethnic cleansing.[9] However, there are too many flaws with the International Criminal Court (I.C.C.) for it to be an effective forum for punishing ethnic cleansing campaigns, compared with ad hoc tribunals or national courts, because the I.C.C. erodes national sovereignty reducing its legitimacy and offers insufficient notice and due process for defendants. Therefore, governments should work through the U.N. to: (1) improve definitions in the Rome Statute, (2) prioritize punishing the elements of ethnic cleansing campaigns in national courts, and (3) use an improved version of the Rome Statute as a standardized body of law to punish ethnic cleansing campaigns through ad hoc tribunals when created by the U.N. Security Council. Part I examines the definition and history of ethnic cleansing, as well as the incremental prohibition of elements of ethnic cleansing in international criminal law. Part II, in turn, will argue that the International Criminal Court is the wrong forum to deter ethnic cleansing campaigns and offer ways to deter ethnic cleansing campaigns in the future. I. ETHNIC CLEANSING IN HISTORY AND INTERNATIONAL CRIMINAL LAW A. Defining Ethnic Cleansing and Tracking the Phenomenon in History Ethnic cleansing is a modern term for an old phenomenon.[10] The phrase emerged in the context of the 1990s Yugoslav Wars.[11] A United Nations Commission of Experts tasked to investigate human rights violations in the former Yugoslavia defined ethnic cleansing as “[R]endering an area ethnically homogeneous by using force or intimidation to remove persons of given groups from the area. . .[as part of a] a purposeful policy designed by one ethnic or religious group to remove by violent and terror-inspiring means the civilian population of another ethnic or religious group from certain geographic areas.”[12] Armed groups in Bosnia, Croatia, and Kosovo used violence—including massacres and mass rape—to expel different ethnic groups from territory to consolidate control of that territory during the collapse of Yugoslavia.[13] On one hand, inter-group violence is a recurrent pattern throughout history, while on the other modern states may be needed for the most refined and planful forms of ethnic cleansing.[14] “Modern racialist nationalism was necessary for ethnic cleansing in the twentieth century but not sufficient. . .The modern states takes the census, organizes cadastral surveys, counts, measures weighs, categorizes, and homogenizes. It reifies geographical boundaries and enforces zoning regulations.”[15] Modern states are uniquely powerful across many areas of social life and sometimes government leaders have incentives to homogenize their population to enhance control. Photography, newspaper reporting, and the movement of large numbers of refugee raised concerns about ethnic cleansing in the early 20th century.[16] The well documented genocide of Armenians by the Ottoman Empire, and Jews, Poles, and Roma in the Holocaust by Nazi Germany involved both ethnic cleansing and genocide.[17] In the early 1920s, Kemal Ataturk’s Turkish nationalist faction that helped to mastermind the Armenian Genocide launched mass killing and ethnic cleansing of Greeks on the Turkey’s Aegean coast.[18] Turkish forces torched cities along their way and burned down the larger city of Smyrna, raping women, and deporting the Greek and Armenian population.[19] The Soviet Union used ethnic categorizations as a way to control its population.[20] Many ethnic minorities such as Balts, Ukrainians, Georgians, and Jews initially enjoyed a more favorable status in the Soviet Union because of perceived prior oppression by the Tsarist governemnt.[21] But as the Soviet Union moved beyond the chaos of the Russian Civil War toward the extraordinary state violence of the Stalinist era, it increasingly used ethnic Russians as a reliable ethnic group to tie non-Russian territories back to Moscow or subdivided ethnic groups to establish control.[22] The workforce of collective and state farms was organized along ethnic lines by the central government in Moscow.[23] Soviet statisticians built on the 1897 Russian census to populate new lands and atomize the country to maintain control.[24] On the eve of World War II, beginning in 1937, the Soviet Union launched a series of deportations for ostensible security reasons, anticipating the possibility of future partisan activity on its frontiers.[25] It expelled Poles and Germans to Central Asia, Finns to Karelia, and Koreans to Kazakhstan—a particularly dry and remote part of the Soviet Union, far from national borders where these groups might be able to organize with outside powers.[26] Although incidents of ethnic cleansing take different forms—such as massacres, destruction of property, and forced expulsions--there are many commonalities.[27] Ethnic cleansing commonly takes place during war, but can also occur in peacetime.[28] Mass murder and expulsion of Greeks and Armenians, Jews, Chechens, or Germans all accompanied war.[29] Modern nation-states may be particularly prone to carrying out ethnic cleansing campaigns.[30] In premodern warfare, it was more common for aggressors to allow targeted groups to surrender, change sides, convert, or pay tribute.[31] By forcing people of a targeted ethnic group to leave through violence, harassment, rape, or forced expulsion, government leaders can prevent members of that group from engaging in secessionism or gaining support from other countries and international organizations that could threaten the power of government leaders.[32] Ethnic cleansing can be partial, targeting only members of a certain sex or sparing some individuals with valuable skills. Following a “gendercide” model[33], Turks allowed some Armenian and Greek women to convert to Islam and the Soviet Union allowed some Poles and Germans to stay in critically important factory jobs.[34] By contrast, the Soviet Union expelled every Chechen, regardless of party rank, sex, or specialized skill.[35] Greeks destroyed mosques while Turks destroyed Greek and Armenian churches. German perpetrators seized private property and demolished synagogues.[36] Both the Muslim majority Bosnian government and the separated Republika Srpska destroyed the opposing side’s homes.[37] The entire world is organized into nation-states, while international institutions have simultaneously emphasized minority rights.[38] Thus, government leaders sometimes have strong incentives to use the language of integral nationalism to consolidate power over the dominant ethnic group in their country by scapegoating and forcibly removing minority ethnic groups. [39] In the 1990s, when the term entered common parlance, international organizations recognized ethnic cleansing as a major problem and sought to end it.[40] Yet this sentiment has not necessarily yielded results in the intervening decades. Since the beginning of the current century, Myanmar[41] and South Sudan[42] have conducted campaigns of ethnic cleansing. China has repressed its Uyghur and Tibetan population[43] and both Russia and Ukraine have charged the other with “genocide,”[44] that more closely conforms to ethnic cleansing in the contested Donbas territories. Ethnic cleansing is a continuing problem in the 21st century that should be remedied, although making ethnic cleansing a freestanding crime in international criminal law is inappropriate. B. Proscribed Without a Freestanding Crime: How Ethnic Cleansing Was Quietly Prohibited in International Criminal Law Ethnic cleansing is effectively encompassed by crimes against humanity and genocide, although it has so far has not been treated as a freestanding crime.[45] Therefore, understanding the history of crimes against humanity is important to understanding the ways that ethnic cleansing can be punished in international criminal law. International criminal law has its roots in early forms of war crimes law and international humanitarian law. Francis Lieber drafted the influential 1863 Instructions for the Government of Armies of the United States, used by the Union Army during the American Civil War.[46] The 1899 and 1907 Hague Conventions and the subsequent 1929 Geneva Convention instituted protections for prisoners of war and sought to prohibit some acts of war.[47] The 1899 Hague Convention was the first to hint at a concept of crimes against humanity, referring to unspecified “laws of humanity” in the Martens Clause in its preamble, propounded in the subsequent 1907 Convention.[48] These developments created precedent for international law and pointed the way toward the concept of crimes against humanity enshrined in international law. In the midst of World War I, news of Turkish mass killings of Armenians reached Allied governments, prompting the European powers to condemn “crimes against humanity and civilization.”[49] European powers suggested that Turkish officials be prosecuted for crimes against humanity, although this never proceeded because the U.S. applied diplomatic pressure and objected that there was no such defined category of crimes.[50] As Allied forces toppled the Third Reich in 1945 evidence of more atrocities came to light across Europe—with similar crimes perpetrated by the Japanese Empire in East Asia.[51] Refugees fleeing the Soviet Union and the satellite states it created in Eastern Europe reported similar horrors perpetrated on the orders of Josef Stalin.[52] The concept of crimes against humanity emerged out of the Nuremberg and Tokyo trials at the end of World War II.[53] In August, 1945, the Allies developed the Nuremberg Charter, subsequently duplicated in the Tokyo Charter, as the rules of procedure for the Nuremberg Tribunal to try Nazi leaders.[54] For the first time, a document contained a formal definition of crimes against humanity, in Article 6. “[Crimes against humanity include]: murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.”[55] The Nuremberg Charter’s inclusion of crimes against humanity was significant, marking the first formalization of crimes against humanity in an international agreement. For the first time, two instruments entertained the possibility that atrocities against civilians might also be punishable, potentially with or without the nexus of war. Polish lawyer Raphael Lemkin coined a new phrase in a 1944 book: “genocide.”[56] The phrase combined the Greek root word for a race or tribe with the Latin suffix for “kill.”[57] Lemkin urged the international community to permanently forbid genocide and his idea gained traction at the United Nations, resulting in the Convention on the Prevention and Punishment of the Crime of Genocide, ultimately signed by 149 countries.[58] The Convention attempted to make genocide an international crime and called for it to be punished in national courts or “an international penal tribunal,” but did not create an actual mechanism to try genocide cases.[59] At the time the Convention was drafted, it reflected the attitudes of the Soviet Union and European colonial powers that limited the scope of genocide.[60] Rather than encompass the broader “democide,” killing groups of people for political or economic reasons, genocide’s scope was constrained to religious, racial, and ethnic groups.[61] The Convention focused most of all on measures designed to “bring about the physical destruction [of an ethnic group] in whole or in part,” yet included acts beyond killing such as “causing serious bodily or mental harm to members of the group.”[62] A year later, the 1949 Geneva Convention included Common Article 3, setting minimum standards in international armed conflict and non-international armed conflicts alike.[63] The Convention prohibits: “(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; (b) taking of hostages; (c) outrages upon personal dignity, in particular, humiliating and degrading treatment; (d) the passing of sentences and carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.”[64] Protocol I and Protocol II were added to the Geneva Convention in 1977, expanding protections for guerillas and non-state actors.[65] Both these instruments created forms of international humanitarian law rather than international criminal law per se, but fell short of criminalizing ethnic cleansing, genocide, war crimes, and crimes against humanity. Throughout the duration of the Cold War, no international court existed to try genocide cases—or war crimes and crimes against humanity. Instead, countries opted for what might be termed self-help.[66] Israel famously abducted Nazi war criminal Adolf Eichmann in Argentina and spirited him back to Israel for a trial in 1960 that culminated in his execution by hanging.[67] The U.S. took the uncommon step of court-martialing William Calley Jr., a U.S. Army officer who killed 22 South Vietnamese civilians during the Vietnam War in the highly publicized My Lai massacre. Calley ultimately served three years under house arrest.[68] The Eichmann trial and the Calley trial demonstrated that states could punish individuals responsible for serious atrocities without international criminal law. Nevertheless, the Cold War period was a time of impunity for atrocities, creating a perceived need for international criminal law in the 1990s. Leaders that committed acts of genocide, war crimes, and crimes against humanity largely escaped prosecution during the Cold War years.[69] For instance, Ugandan dictator Idi Amin may have killed up to 500,000 of his own citizens during the 1970s but ultimately died of natural causes in exile in Saudi Arabia.[70] Mengistu Haile Mariam led the Derg, a Marxist-Leninist military junta in Ethiopia that instituted a man-made famine on Ethiopian peasants throughout the 1980s, yet remains at large in Zimbabwe.[71] In stark contrast to the U.S. Calley trial, Soviet forces in Afghanistan, Portuguese forces in Africa, and other counter-insurgency forces escaped significant punishment for depredations against civilians.[72] An important step toward freestanding international criminal law came in 1973. The International Convention on the Suppression and Punishment of the Crime of Apartheid—the Apartheid Convention—came into being, in reaction to the abuses of South Africa’s white minority government against its black majority population.[73] The Apartheid Convention nominally criminalized racial discrimination in international law, although it was only adopted by 26 countries, raising the possibility that discrimination against an ethnic group could be an international crime, in a way broader than the prohibitions in the Genocide Convention.[74] This was an important step toward international criminal law standards that encompass ethnic cleansing because it included racial discrimination, which could be used to homogenize an area. The agreement was proposed by the Soviet Union and its Marxist-Leninist allies in Eastern Europe for largely cynical reasons, because the Soviet Bloc was trying to weaken and embarrass South Africa—a key U.S. ally in Africa—even as it engaged in similar practices domestically, and sought to expand its political influence in Africa.[75] In practice, South African citizens traveling to the Soviet Union would be protected by diplomatic immunity or be informally protected as part of trade missions, and thus would not face prosecution.[76] The Soviet Union had assumed the mantle of Third World internationalism and anti-colonialism despite its own unclean hands: throughout the 1960s, the Soviet Union expelled ethnic Kazakhs in the Virgin Lands Campaign, paving the way for ethnic Russian settlement of the steppes.[77] The Apartheid Convention was one of the only international criminal laws of its time, contemplating an “international penal tribunal” to enforce the crime of apartheid, regardless of a country like South Africa’s consent, although this tribunal was never actually formed.[78] It also challenged South Africa’s sovereignty, criminalizing “any measures, including legislative measures, designed to divide the population along racial lines by the creation of separate reserves and ghettos for the members of a racial group or groups.”[79] This essentially encompassed one potential form of ethnic cleansing: forced expulsion of an ethnic group to a different location to increase the homogeneity of an original location.[80] As the post-Cold War world continued to interpret the legacy of Nazi and Soviet crimes, as well as atrocities committed during the Cold War, it had to contend with contemporary atrocities that helped to inspire the development of international criminal law. Saddam Hussein massacred hundreds of thousands of Shia Arab rebels throughout 1991 in southeastern Iraq and used nerve gas on Kurdish villagers in 1988.[81] Rwanda experienced a genocide in April, 1994, with nearly 800,000 ethnic Tutsis killed by the Hutu majority ethnic group. Yugoslavia imploded, with ethnic cleansing, massacres, and the siege of Sarajevo in Bosnia—and subsequent claims of Serbian ethnic cleansing of Kosovar Albanians.[82] The mid-1990s witnessed the creation of ad hoc international tribunals to address genocide in Rwanda and war crimes in the former Yugoslavia.[83] The International Criminal Tribunal for Rwanda was established in Arusha, Tanzania.[84] National governments orchestrated the extradition of 72 individuals to face trial.[85] Most defendants held senior positions in the Rwandan national government, regional governments, or military, but the ICTR also prosecuted leaders of a major radio station and newspapers for genocide.[86] Unlike the ICTR, the International Criminal Tribunal for the former Yugoslavia (ICTY) had continuing jurisdiction over subsequent crimes in the region so that it could try crimes that took place after the time of its creation.[87] Although the ICTY was intended to deter subsequent crimes in the region after the time of its creation, its creation did not immediately achieve that result. As it held its first trial in July, 1995, leaders of the Republika Srbska carried out the Srebrenica massacre.[88] Both ad hoc tribunals relied on statutes specially created by the U.N. Security Council[89], that echoed aspects of the Nuremberg Charter.[90] Article 5 of the ICTY Statute defined crimes against humanity as “crimes when committed in armed conflict, whether international or national in character, and directed against any civilian population: (a) murder, (b) extermination, (c) enslavement, (d) deportation, (e) imprisonment, (f) torture, (g) rape, (h) persecutions on political, racial, and religious grounds, (i) other inhumane acts.”[91] The ICTR Statute contained the same list of crimes, but eliminated the nexus of war, thereby expanding crimes against humanity to a broad spectrum of cases that could include non-wartime ethnic cleansing.[92] In addition to the ad hoc tribunals, the 1990s witnessed the creation of hybrid tribunals, held in national courts with U.N. support, with some international staffing.[93] The Special Court for Sierra Leone sought to try warlords, while the Extraordinary Chambers of the Supreme Court of Cambodia was used to try leaders of the 1970s Khmer Rouge.[94] Although the Apartheid Convention was the first to contemplate some form of permanent international tribunal to punish apartheid, the end of apartheid in the 1990s did not ultimately involve any action by an international tribunal. South Africa’s National Party manufactured a 1992 referendum among white, Coloured, and Indian voters in favor of the end of apartheid and multiracial elections brought former political prisoner, Nelson Mandela, to power in 1994. South Africa established a Truth and Reconciliation Commission to study the legacy of apartheid and grant immunity to those that committed crimes during the apartheid period in exchange for an admission of responsibility, demonstrating that a country could remedy the impacts of ethnic cleansing through amnesty without international criminal law.[95] In 1996, the International Law Commission made an initial attempt to codify crimes against humanity law in its Draft Code of Crimes Against Peace and Security of Mankind.[96] Article 18 of the Draft Code laid out the elements of crimes against humanity, including some that encompass aspects of ethnic cleansing.[97] “(e) persecution on political, racial, religious or ethnic grounds; (f) institutionalized discrimination on racial, ethnic or religious grounds involving the violation of fundamental human rights and freedoms and resulting in seriously disadvantaging a part of the population; (g) arbitrary deportation or forcible transfer of population; (h) arbitrary imprisonment; (i) forced disappearance of persons.” Article 20 defined further war crimes including: “the transfer by the Occupying Power of parts of its own civilian population into the territory it occupies,” limiting one way that might ethnic cleansing might take place.[98] In 1998, initial ILC definitions were updated into the multilateral Rome Statute, creating the International Criminal Court (I.C.C.) as a body complementary to national jurisdiction and independent of the U.N.[99] On July 1, 2002, the Rome Statute entered into force and the I.C.C. began operating.[100] The court gained a limited jurisdiction for genocide, crimes against humanity, aggression, and war crimes committed after July 1, 2002 by the national of a state party in the territory of a state party or in a different state that has ratified the Rome Statute.[101] The I.C.C. also gained jurisdiction over the crime of apartheid, as an element of crimes against humanity, conceptually delinked from South Africa.[102] The U.N. Security Council has a privileged ability to expand the jurisdiction of the court by referring crimes to the I.C.C. Chief Prosecutor.[103] Arguably, the I.C.C. has tried to prosecute ethnic cleansing under the umbrella of other crimes on one occasion. For instance, the I.C.C. manifested a willingness to prosecute ethnic cleansing without saying so explicitly in 2008, the prosecutor issued an indictment for President Bashir of Sudan, alleging forced expulsion of 2.7 million people, genocide, and war crimes.[104] However, the I.C.C.’s attempt to prosecute forced expulsion was ineffective. Despite issuing two arrest warrants, and Bashir being deposed by a coup in 2019, the I.C.C. has still not obtained custody over Bashir and thus has not proceeded beyond the pre-trial phase.[105] The International Law Commission issued the Draft articles on Prevention and Punishment of Crimes Against Humanity in 2019, indicating that international criminal law will likely expand in the future.[106] Despite repeated promises that crimes against humanity will “never again” be permitted, such crimes have continued to occur in the 21st century, prompting the new drafting initiative.[107] The Draft articles largely imitates references to crimes against humanity in the Rome Statute. Article IV would impose an affirmative duty of prevention on signatory states, whereas Article VI calls on countries to prohibit crimes against humanity in their national law.[108] The Draft articles seek to punish commanders and subordinates alike, with options for national courts or “[a] competent international criminal court or tribunal” to bring charges against a defendant.[109] Neither the Rome Statute nor the Draft articles have ethnic cleansing as a freestanding crime but both instruments do in effect proscribe ethnic cleansing by prohibiting attacks directed against a civilian population, extermination, “deportation or forcible transfer of population,” and persecution.[110] The work on the Draft articles, more than two decades after the Rome Statute’s adoption, suggests that international criminal law will continue to expand in the future, raising the prospect that ethnic cleansing may become a freestanding crime in the future in a bid to prevent ethnic cleansing campaigns. II. WHY CURRENT INTERNATIONAL CRIMINAL LAW IS THE WRONG WAY TO PREVENT ETHNIC CLEANSING A. International Criminal Law: A Flawed Jurisprudence for Ethnic Cleansing Ethnic cleansing is not a freestanding crime, but most elements of ethnic cleansing are currently criminalized under the Rome Statute.[111] The Rome Statute and the I.C.C. as constituted since 1998 is a flawed jurisprudence to deter ethnic cleansing. The I.C.C. has brought only a handful of prosecutions at high cost, resulting in few convictions.[112] Definitions in the Rome Statute are vague, raising the possibility of biased legal campaigns against national governments that deter many of the world’s great powers from cooperating with the I.C.C. Moreover, the Rome Statute might even encourage some government leaders to launch ethnic cleansing campaigns to prevent future international pressure on behalf of ethnic minorities. For a country’s nationals, the Rome Statute usurps sovereignty, preventing a country’s own legal system from holding government leaders accountable for ethnic cleansing and potentially preventing something like South Africa’s Truth and Reconciliation Commission from achieving closure after ethnic cleansing. Additionally, the Rome Statute does not contain adequate notice or due process to government leaders who might face prosecution for crimes against humanity. Improved definitions would make the Rome Statute a standardized statute for ad hoc tribunals, but the foregoing drawbacks do not ameliorate the I.C.C.’s deficiencies as a way to prevent ethnic cleansing. Many national governments may fear that the I.C.C. will be used as a political tool against them by domestic dissidents or foreign adversaries. U.S. commentators have spoken to these concerns most clearly and similar concerns could be extrapolated to other non-signatories like Russia, China, and India.[113] The I.C.C. has also risked alienating entire regions through lopsided prosecutions, as when it prosecuted exclusively African defendants throughout the 2000s and 2010s.[114] Some of these cases fell apart in spectacular fashion, signaling that the I.C.C. was internally disorganized or lacked international support. Congolese militia leader Thomas Lubanga was set free after prosecutors refused to share U.N. documents with judges and defense lawyers because they were obligated to honor a U.N. confidentiality agreement to receive the documents.[115] The case signaled that the I.C.C. had some commitment to due process, but alarmed intelligence and law enforcement agencies that they would have no guarantee of confidentiality if they assisted the I.C.C.[116] By bringing only a small number of cases, at high cost, allowing cases to fall apart, and alienating national law enforcement agencies, the I.C.C. has shown itself to be an ineffective body for international criminal law enforcement. This ineffectiveness is reinforced by the many undefined terms in the Rome Statute. For instance, even enumerated crimes are little explaned: it is unclear whether the “crime of apartheid” is the same as “apartheid” described in the Apartheid Convention. Depending on how broadly apartheid is defined by the I.C.C., indigenous land grants (like Indian reservations in the U.S.) or poor ethnic minority neighborhoods could be framed as apartheid, and used as the basis to prosecute government leaders. The Rome Statute does not clearly grant national governments a safe harbor to deport illegal migrants or expropriate land with compensation for economic development. The existence of the Rome Statute and the I.C.C. might perversely encourage some unscrupulous government leaders to launch ethnic cleansing campaigns, especially if the I.C.C. is perceived as a threat but one that is less credible than economic or military retaliation by great powers. For decades, ethnic minorities have appealed to the international community for support, sometimes winning international backing.[117] Full sweep expulsions tend to ultimately be recognized as legitimate by the international community.[118] Few seriously propose reparations or right of return for ethnic Germans expelled from East Prussia, western Poland, or the Czech Sudetenland.[119] Meanwhile, Israel faces protracted international pressure to grant civil rights, land, or independence to Palestinian Arabs, who were never fully expelled from territory controlled by Israel.[120] Although the example of apartheid in South Africa predates the I.C.C. it is a useful analogy to consider. There, the white minority government of South Africa faced diffuse international pressure to end discriminatory treatment of its black majority, arguably comparable to the remote threat of eventual prosecution by the I.C.C.[121] Faced with this pressure, South Africa’s leaders essentially chose to ethnically cleanse parts of the country, herding black residents into bantustans—special reservations that it nominally granted independence to—thus boosting its non-black population through a legal fiction. Only after the diffuse, remote threat of international sanction became more pointed when even great powers like the U.S. imposed sanctions on South Africa after 1986 did South Africa end apartheid and disband the bantustans.[122] International criminal law potentially deprives countries of the ability to prosecute defendants within their own courts, thus eroding sovereignty, because a prosecution in an international court diverts time, money, and testimony from a prosecution in a national court. Serbia and Montenegro, successor state to Yugoslavia, reluctantly handed over its former leader Slobodan Milosevic to international prosecutors at a NATO airbase in Bosnia over objections from the Serbian president about the extradition.[123] Although Serbia and Montenegro could have chosen extradition on political or philosophical grounds, news coverage of the handover indicated that it was essentially coerced with vital international funding predicated on the extradition.[124] The I.C.C. prosecuted only African defendants during its first two decades of existence, although it did conduct preliminary examinations on other continents.[125] This track record raised concerns about paternalism, seemingly holding African defendants to a different standard and prompted a backlash against the I.C.C.[126] In 2016, South Africa unilaterally withdrew from the Rome Statute after Burundi began the process of pulling out of the agreement, although it revoked its withdrawal in 2017.[127] International criminal law suffers from many inherent due process problems.[128] The ad hoc tribunals of the 1990s and the I.C.C. lack jury trials, raising the risk of bias by judges.[129] The I.C.C. accepts hearsay evidence and anonymous evidence, potentially limiting the ability of defendants to mount a successful defense.[130] Going back to the days of the Nuremberg Tribunals, critics have warned about inadequate notice of liability for international crime.[131] It is difficult to require individuals to adhere to a standard if the standard is unknown, and without proper notice prosecution may be unfair. For example in Prosecutor v. Mucic, better known as the C̆elebići Case, the ICTY Trial and Appeals Chamber could not agree whether the prosecution was rooted in the Rome Statute or general principles of international law, offering a prime example of inadequate notice.[132] The Draft articles aim to close loopholes in the Rome Statute for crimes against humanity. However, the Draft articles as currently constituted do not improve notice, due process, or address the uncertain definitions that dissuade many national governments from cooperating with the I.C.C.[133] If the Draft articles or Rome Statute were modified to include ethnic cleansing as a freestanding crime, this alone would not do any more to prevent ethnic cleansing campaigns than current crimes because of the inherent problems of notice and definitions in the Rome Statute. Even if these definitions were changed, ethnic cleansing is most useful as a concept rather than a freestanding crime because it is easier to improve definitions for existing crimes rather than create another poorly defined crime in the Rome Statute. These deficiencies point the way to prosecution in national courts or ad hoc tribunals that might provide the greatest notice, due process, and sovereignty. B. Addressing Counterpoints The negotiations that created the Rome Statute suggest a wide range of philosophical viewpoints on the efficacy of the I.C.C. and international criminal law more broadly.[134] Therefore, before forging ahead with a proposal to prevent ethnic cleansing in the future, it is important to consider arguments in favor of the I.C.C. as a venue for prosecuting ethnic cleansing and the merits of ethnic cleansing as a freestanding crime. Many of the criticisms of the I.C.C presented in the preceding section could be seen as benefits of the I.C.C. by its proponents, most of all the Rome Statute’s role in overriding national sovereignty. If government leaders and military commanders are the perpetrators of ethnic cleansing, then it might arguably be best to “pierce the veil” of national sovereignty to ensure accountability. Yet, this view misses key aspects of the I.C.C. By overriding sovereignty, the I.C.C. ignores its origins in the multilateral Rome Statute, negotiated by nation states. Moreover, it threatens to be a rogue and unaccountable organization, controlled by no one, and given to bias—either as a neocolonial instrument enforcing Western ethics on the world or as a cudgel against superpowers. Broad definitions and indeterminate due process guarantees might also be seen as benefical, allowing the broadest flexibility in prosecuting government leaders that carry out ethnic cleansing campaigns. Yet, this reduces legitimacy, because prosecutions may appear selective when applying largely subjective definitions. Additionally, lack of explicit due process protections—even if typical of many court systems worldwide—leave the impression of unfairness and bias on the part of the court, with prosecutions and convictions as foregone conclusions, rather than considered decisions. Then, there is a proposed opposing viewpoint that ethnic cleansing should be made a freestanding crime, although no existing documentation explicitly calls for this approach. If the goal is to prevent ethnic cleansing, then making ethnic cleansing as a freestanding crime would remove any prosecutorial indeterminacy if a situation does not neatly fit the existing broad definitons of crimes against humanity, genocide, or war crimes.[135] Adding more terms is more likely to engender indeterminacy, allowing governments to debate classification rather than take action.[136] Ultimately, the arguments in favor of prosecuting ethnic cleansing in the I.C.C. or the proposed arguments in favor of ethnic cleansing as a freestanding crime are insufficient, and merely second best approaches to preventing ethnic cleansing. C. Deterring Ethnic Cleansing: The Way Forward Deterring ethnic cleansing is a valuable goal. Although the I.C.C. can in theory deter ethnic cleansing, in practice it is second best to national courts and ad hoc tribunals because it erodes sovereignty, operates at very high costs without appropriate notice and due process, and has alienated three of the five U.N. Security Council members because it can so easily be hijacked for lawfare against great powers. The Rome Statute, albeit with improved definitions, remains a potentially useful instrument. It could be used to set a baseline for legal notice for future ad hoc tribunals created by the U.N. Security Council, rather than creating standalone statutes for each tribunal as was the case with ICTR and ICTY. The Rome Statute begins to provide notice, yet needs clearer definitions to improve notice, enhance due process, and uphold sovereignty. Specifically, the Rome Statute should include: (1) permission for countries to expropriate land for economic development and deport illegal migrants with due process, (2) a numerical threshold for crimes against humanity so that a single killing cannot constitute a crime against humanity, and (3) eliminate the crime of apartheid because it is too vague about whether it proscribes speech or prevents support to indigenous groups like reservations in the U.S. Moreover, the Rome Statute should include due process enhancements like: (1) a prohibition on hearsay and anonymous evidence, and (2) juries or panels of judges selected through a voir dire-style process. The U.N. Security Council’s permanent members are not elected and in that sense pose risks to the sovereignty of other countries. Nonetheless, the U.N. Security Council does represent five of the world’s most powerful countries. The five permanent members do not share identical foreign policy views and moreover, non-permanent members on the U.N. Security Council rotate.[137] Therefore, the U.N. Security Council is probably less likely to be overwhelmed by bias or play favorites than the I.C.C. To further affirm sovereignty, the U.N. Security Council could limit ad hoc tribunals to only countries that have already signed and ratified the Rome Statute. National courts are the best venue to punish ethnic cleansing, as encompassed by crimes against humanity, because national courts show that a country’s own legal system is able to punish government leaders who have conducted ethnic cleansing campaigns within that country. This is more emblematic of accountability and rule of law than the abstract and far away I.C.C. in the Hague. Actually achieving successful prosecutions in national courts could be difficult, because of loyalists entrenched in the court who favor a government that has carried out an ethnic cleansing campaign. To overcome these difficulties, the U.N. could provide resources including personnel much like the hybrid tribunals in Cambodia and Sierra Leone. Ethnic cleansing campaigns can be dettered. Deterrance should take place through national courts and ad hoc tribunals, with pressure applied through traditional state-to-state relations. There is no need to create a freestanding crime of ethnic cleansing, but there is a need to improve definitions in the Rome Statute and use it as a baseline of notice and due process for prosecuting crimes against humanity that comprise ethnic cleansing. CONCLUSION Ethnic cleansing and forced expulsion amount to a serious abuse of human rights. Despite exuberance about international criminal law that culminated in the Rome Statute and the creation of the International Criminal Court in 1998, ethnic cleansing never became a freestanding crime in international criminal law. Rather, it is effectively prohibited under international law against genocide, war crimes, and crimes against humanity. So far, in the 21st century, nation-states have persisted in ethnic cleansing campaigns with potential incidents recognized in Myanmar, Ukraine, Sudan, South Sudan, and other states. However, adding ethnic cleansing to international criminal law as a freestanding crime raises serious concerns about appropriate definition, preventing uneven prosecutions, and permitting legitimate state actions like expropriating land with compensation or expelling illegal immigrants. Expanding liability for ethnic cleansing through international criminal law could easily result in unintended consequences that might even encourage governments to undertake ethnic cleansing. Compared with an international agreement, countries should try to prevent ethnic cleansing through traditional reciprocal statecraft—filing diplomatic complaints, imposing economic sanctions, or using military force—rather than erode sovereignty. Indeed, national courts are the best venue for prosecuting ethnic cleansing as a form of crimes against humanity. In other instances, a Rome Statute with better definitions might serve a preventive role if used to set a standardized baseline for ad hoc tribunals created by agreement of the U.N. Security Council. REFERENCES [1] See Ethnic Cleansing, United Nations, (2023), https://www.un.org/en/genocideprevention/ethnic-cleansing.shtml#:~:text=rendering%20an%20area%20ethnically%20homogeneous,and%20terror%2Dinspiring%20means%20the (hereinafter UN Ethnic Cleansing Definition); see also Ethnic cleansing, Encyclopedia Britannica, (2022), https://www.britannica.com/topic/ethnic-cleansing. [2] See generally Norman M. Naimark, Fires of Hatred: Ethnic Cleansing in 20th Century Europe, 7-8 (2002) (hereinafter Fires of Hatred). [3] See Convention on Apartheid, Nov. 30, 1973, 1015 U.N.T.S. 243 (hereinafter Apartheid Convention); see also Peter Geschiere, et al., Survival in the ‘Dumping Grounds,’ 186 (2019). [4] See Why Do We Need an International Criminal Court, United Nations, (1998), https://legal.un.org/icc/general/overview.htm. [5] See Rome Statute of the International Criminal Court, art. 6-8, 37 I.L.M. 999, 2187 U.N.T.S. 90 (hereinafter Rome Statute). [6] See Rome Statute, art. 6-8. [7]See Leila Nadya Sadat, Little Progress in the Sixth Committee on Crimes Against Humanity, 54 Case W. Res. J. Int'l L. 89, 90-93 (2022) (hereinafter Sadat). [8] See id. [9] See, e.g., Bruce Zagaris, ICTY finishes last trial with conviction of Mladic for genocide, war crimes, and crimes against humanity, 33 No. 12 Int'l Enforcement L. Rep. 462, 462 (2017) (“The Trial Chamber convicted Mladic for commanding violent ethnic cleansing campaigns across BiH with the object to permanently remove Bosnian Croats and Muslims through broad and systematic crimes”). [10] See Ethnic cleansing, United Nations Office on Genocide Prevention and the Responsibility to Protect, (2023), https://www.un.org/en/genocideprevention/ethnic-cleansing.shtml (hereinafter U.N. Definition). [11]U.N. Definition., supra note 10. [12] U.N. Definition., supra note 10. [13] See Paul Mojzes, Balkan genocides: holocaust and ethnic cleansing in the twentieth century, Chapter 8 (2011). [14]Fires of Hatred, at 7-8. [15] Fires of Hatred, at 7-8. [16] See Fires of Hatred, at 46-47. [17] Fires of Hatred, at 46-47. [18] Fires of Hatred, at 46-47. [19] Fires of Hatred, at 48-49. [20] Fires of Hatred, at 48-49. [21] See Terry Martin, Origins of Soviet Ethnic Cleansing, 70 J. of Modern History, 813, 825 (1998) (hereinafter Origins of Soviet Ethnic Cleansing). [22] Fires of Hatred, at 85. [23] Fires of Hatred, at 86. [24] Fires of Hatred, at 86. [25] Origins of Soviet Ethnic Cleansing, at 831. [26] Fires of Hatred, at 88. [27]Fires of Hatred, at 187. [28]Fires of Hatred, at 187. [29]Fires of Hatred, at 190. [30]Fires of Hatred, at 190. [31] Fires of Hatred, at 190. [32] Fires of Hatred, at 190. [33] See generally Adam Jones, Gendercide in Kosovo, International Studies Association, (March 18, 2000), https://ciaotest.cc.columbia.edu/isa/joa01/ (explaining that mass killing is often targeted by sex, traditionally—and in modern examples like the Kosovo War—targeting men while sparing the lives of women). [34] Fires of Hatred, at 191. [35] Fires of Hatred, at 191. [36]Fires of Hatred, at 191. [37] Fires of Hatred, at 193. [38] See Minority Rights: International Standards and Guidance for Implementation, 2 (2010). [39] Fires of Hatred, at 199. [40]See Fires of Hatred, at 199. [41] See Myanmar Rohingya: What you need to know about the crisis, BBC, (Jan. 23, 2020), https://www.bbc.com/news/world-asia-41566561. [42] See Tom Miles & Ed Cropley, Ethnic cleansing going on in South Sudan: U.N. commission, Reuters, (Dec. 1, 2016), https://www.reuters.com/article/us-southsudan-un-idUSKBN13Q4SU. [43] See Joel Gunter, China committed genocide against Uyghurs, independent tribunal rules, BBC, (Dec. 9, 2021), https://www.bbc.com/news/world-asia-china-59595952. [44] See Dominique Soguel, When does atrocity rise to the level of genocide?, Christian Science Monitor, (May 25, 2022), https://www.csmonitor.com/World/Europe/2022/0525/When-does-atrocity-rise-to-the-level-of-genocide. [45] See Rome Statute, art. 6-8. [46] Sean D. Murphy, Evolving Geneva Convention Paradigms in the “War on Terrorism”: Applying the Core Rules to the Release of Persons Deemed “Unprivileged Combatants,” 75 Geo. Wash. L. Rev. 1105, 1108 (2007) (hereinafter Murphy). [47] Murphy, at 1151. [48] Rupert Ticehurst, The Martens Clause and the Laws of Armed Conflict, ICRC, (April 30, 1997), https://www.icrc.org/en/doc/resources/documents/article/other/57jnhy.htm. [49] Luban, et al., International Criminal Law, 956 (2010) (hereinafter Luban). [50] Luban, at 956. [51]Luban, at 956. [52]Luban, at 956. [53] Leila Nadya Sadat, Crimes Against Humanity in the Modern Age, 107 Am. J. Int'l L. 334, 337 (2013) (hereinafter Sadat) (citing Affirmation of the Principles of International Law Recognized by the Charter of the Nuremberg Tribunal, GA Res. 95(1) (Dec. 11, 1946); J. Spiropoulos (Special Rapporteur), Formulation of Nürnberg Principles, UN Doc. A/CN.4/22 (Apr. 12, 1950)). [54] Constitution of the International Military Tribunal, (1945), https://avalon.law.yale.edu/imt/imtconst.asp. [55] See id., at art. 6 [56] Caleb King, “Never Again” Must Not be a Meaningless Mantra: The Case for U.S. Support of the International Criminal Court, 52 Cal. W. Int'l L.J. 145, 148 (2021) (hereinafter King). [57] King, at 148. [58] King, at 148. [59]Convention on the Prevention and Punishment of the Crime of Genocide, Art. VI. [60]See King, at 148. [61] See King, at 148. [62] Convention on the Prevention and Punishment of the Crime of Genocide, Art. II(b)-(c). [63] Murphy, at 1115. [64] Murphy, at 1115. [65] Murphy, at 1116. [66]See Murphy, at 1116. [67] See Eichmann Trial, Holocaust Encyclopedia, (2023), https://encyclopedia.ushmm.org/content/en/article/eichmann-trial. [68] Peter Ross Range, Only One Man Was Found Guilty for His Role in the My Lai Massacre. This Is What It Was Like to Cover His Trial, Time, (March 16, 2018), https://time.com/5202268/calley-trial-my-lai-massacre/. [69] See generally South Africa Urged to Bring Ethiopian Dictator to Justice, Human Rights Watch, (Nov. 24, 1999), https://www.hrw.org/news/1999/11/24/south-africa-urged-bring-ethiopian-dictator-justice. [70]See id. [71] See id. [72] See R.J. Rummel, 20th Century Democide, Death by Government, (Nov. 23, 2002), https://www.hawaii.edu/powerkills/DBG.CHAP1.HTM. [73] Adam Sitze, The Crime of Apartheid: Genealogy of a Successful Failure, 7 London Rev. Int'l L. 181, 195 (2019) (hereinafter Sitze). [74] Sitze, at 195. [75] See generally Seth Singleton, The Future of Soviet Influence in Africa, National Council for Soviet and East European Research, (Oct. 27, 1987). [76] Sitze, at 197. [77] See Lewis Siegelbaum, Virgin Lands Campaign, Seventeen Moments in Soviet History: Michigan State University, (2023), https://soviethistory.msu.edu/1954-2/virgin-lands-campaign/. [78] Sitze, at 196 (only 26 countries ultimately signed the Apartheid Convention). [79] Sitze, at 196. [80] See, e.g. U.N. Definition Ethnic Cleansing. [81] See Crimes committed during the regime of Saddam Hussein, European Union Agency for Asylum, (Jan. 2021), https://euaa.europa.eu/country-guidance-iraq-2021/crimes-committed-during-regime-saddam-hussein#:~:text=Saddam%20Hussein%20and%20the%20Baath,Kurdish%20people%20were%20systematically%20persecuted. [82] See Fires of Hatred, 7-8. [83] Stephen J. Rapp, Achieving Accountability for the Greatest Crimes—The Legacy of International Tribunals, 55 Drake L. Rev. 259, 269 (2007) (hereinafter Rapp). [84] Rapp, at 269. [85]Rapp, at 269. [86] Rapp, at 272. [87] Rapp, at 267. [88] Rapp, at 267. [89] See S/RES/827; see also S/RES/955. [90] Luban, at 958-59. [91] ICTY Statute, Art. 5. [92] See ICTR Statute, Art. 3. [93] See Sara L. Ochs, A Renewed Call for Hybrid Tribunals, 52 N.Y.U. J. Int'l L. & Pol. 351, 365-68 (2020) (explaining that hybrid tribunals were intended to restore national ownership and enhanced legitimacy compared with ad hoc tribunals, but often had limited jurisdiction and unclear division of authority between national and international staff members). [94] Rapp, at 284 (although these two courts were not created to address ethnic cleansing, they stand as an important example of international criminal law and domestic criminal law combined in a single body, which could be a more sovereignty-affirming way to deter ethnic cleansing in the future). [95] Sitze, at 200. [96] Sadat, at 341 (citing Report of the International Law Commission on the Work of Its Forty-Eighth Session, UN Doc. A/CN.4/SER.A/1996/ Add.1 (Part 2), reprinted in 1996-II Y.B. INT'L L. COMM'N 17, 45, available at http://untreaty.un.org/ilc/publications/ yearbooks/Ybkvolumes(e)/ILC_1996_v2_p2_e.pdf). [97] Art. 18, https://legal.un.org/ilc/texts/instruments/english/draft_articles/7_4_1996.pdf. [98] Art. 18. [99] Fanny Benedetti, et al., Negotiating the International Criminal Court : New York to Rome, 1994-1998, 167 (2014) (hereinafter Benedetti). [100] King, at 152. [101] King, at 153. [102] Sitze, at 200-201. [103] King, at 154. (As of 2023, referrals have only occurred twice: in 2005 for Darfur and 2011 for Libya.) [104] Rough Justice, at 144. [105] See Samy Magdy, Official: Sudan to hand over al-Bashir for genocide trial, AP, (Feb. 11, 2020); see also Al Bashir Case, International Criminal Court, (2023), https://www.icc-cpi.int/darfur/albashir. [106] Yearbook of the International Law Commission, 2019, vol. II, Part (hereinafter Draft articles). [107] See Sadat, at 90. [108] Draft articles, Art. 4. [109] See Draft articles, Art. VI, Art. VII, Art. X. [110] See Draft articles, Art. II. [111] See UN Ethnic Cleansing Definition; see also Rome Statute, art. 6-8. [112] See Daniel Abebe, I.C.C.’s Dismal Record Comes at Too High a Price, New York Times, (Dec. 12, 2014), https://www.nytimes.com/roomfordebate/2014/12/11/do-we-need-the-international-criminal-court/iccs-dismal-record-comes-at-too-high-a-price. [113] See U.S. Policy Regarding the International Criminal Court (ICC), Congressional Research Service, 3 (Aug. 22, 2006), https://www.everycrsreport.com/files/20060829_RL31495_aec404eb09ff2eae7c3311360dfd7d1dc89f3107.pdf (explaining that the U.S. government fears servicemembers and government leaders could be seized and tried with international crimes); see alsoWhy does the International Criminal Court not have more support?, The Economist, (April 21, 2021), https://www.economist.com/the-economist-explains/2021/04/21/why-does-the-international-criminal-court-not-have-more-support?utm_medium=cpc.adword.pd&utm_source=google&ppccampaignID=17210591673&ppcadID=&utm_campaign=a.22brand_pmax&utm_content=conversion.direct-response.anonymous&gclid=EAIaIQobChMIgYz2xIn1_QIV8zizAB2vmgHoEAMYASAAEgJgh_D_BwE&gclsrc=aw.ds (explaining that countries like Russia, China, and Saudi Arabia are concerned national government leaders could be prosecuted for human rights abuses). [114] See David Bosco, Rough Justice: The International Criminal Court in a World of Power Politics, 139 (2014) (hereinafter Rough Justice). [115] Rough Justice, at 140. [116] Rough Justice, at 140. [117] See “This Is Our Home”: Stateless Minorities and their Search for Citizenship, UNHCR, 9 (2017). [118] See, e.g. Raymond A. Smith, The Status of the Kaliningrad Oblast Under International Law, 38 Lituanus 6, 52 (1992). [119] See id. [120] See generally A Threshold Crossed: Israeli Authorities and the Crimes of Apartheid and Persecution, Human Rights Watch, (April 27, 2021), https://www.hrw.org/report/2021/04/27/threshold-crossed/israeli-authorities-and-crimes-apartheid-and-persecution. [121] See Philip I. Levy, Sanctions on South Africa: What Did They Do?, 796 Economic Growth Center: Yale University 2, 3-8 (1999) (hereinafter Levy) (international pressure could be said to be diffuse because only small economies, OPEC, and the Soviet Bloc sanctioned South Africa to a significant extent before 1985, whereas sanctions from large economies like the U.S. and Western Europe had a much more focused effect after 1985). [122] See Levy, at 8. [123] Milosevic extradited, BBC World News, (Jun. 28, 2001), http://news.bbc.co.uk/2/hi/europe/1412828.stm. [124] Id. [125] See Cases, International Criminal Court, (2023), https://www.icc-cpi.int/cases; see also Preliminary Examinations, International Criminal Court, (2023), https://www.icc-cpi.int/situations-preliminary-examinations. [126] See John Mukum Mbaku, International Justice: The International Criminal Court and Africa, Brookings Institution: Africa Growth Initiative, 9, 9 (2014). [127] Jean-Baptiste Jeangene Vilmer, The African Union and the International Criminal Court: counteracting the crisis, 92 Int’l Affairs 1319, 1319 (2016); see also South Africa revokes ICC withdrawal after court ruling, BBC, (March 8, 2017), https://www.bbc.com/news/world-africa-39204035. [128] See Ted Galen Carpenter, At I.C.C., Due Process Deficiencies Mar Credibility, New York Times, (Dec. 11, 2014), https://www.nytimes.com/roomfordebate/2014/12/11/do-we-need-the-international-criminal-court/at-icc-due-process-deficiencies-mar-credibility. [129] Id. [130] Id. [131] See Opening Statement before the International Military Tribunal, Robert H. Jackson Center, (2023), https://www.roberthjackson.org/speech-and-writing/opening-statement-before-the-international-military-tribunal/. [132] Oona A. Hathaway, et al. What is a War Crime?, 44 Yale J. Int'l L. 53, 78 (2019). [133] See, e.g., Draft articles, art. 2, art. 11 (reiterating virtually unchaged definitions of crimes against humanity and omitting procedural due process guarantees for defendants). [134] See Benedetti, at 11-15. [135] See, e.g., Linnea D. Manashaw, Genocide and Ethnic Cleansing: Why the Distinction? A Discussion in the Context of Atrocities Occuring in Sudan, 35 Cal. W. Int'l L.J. 303, 330 (2005). [136] See id. [137] See Ian Johnstone, Legislation and Ajdudication in the UN Security Council: Bringing Down the Deliberative Deficit, 102 Am. J. Int'l L. 275, 300-301 (2008). Image Credit: Magdalena, Unsplash

Originally published April 19, 2023 England in the early 1600s launched a process of settler colonialism distinct from the small-scale settler colonialism of France, the Netherlands, Spain, and Portugal. Decentralized colonies sprang up quickly in North America, and later in Oceania, after the 1780s, even as some of the American colonies separated from the Crown following the American Revolution. Coordinated, market driven, and high fertility, English settlement imported common law and burgeoning populations to three different large land masses. The U.S., Canada, Australia, and New Zealand have an unusual genesis as settler societies, expanding rapidly first in the age of sail, and then with railroads and highways. The rapid growth of these countries came at the expense of indigenous people, who died off in large numbers exposed to European diseases, or fared poorly due to the coordination and numbers of people brought to bear by settlement. The die off of as many as 90 percent of indigenous people in some parts of these countries paved the way for astonishing growth and a cultural sea change seen almost nowhere else in the world. Despite heavy losses, indigenous people did survive, forcing governments in all four countries to develop unique bodies of law to deal with indigenous people and their remaining land. This paper will compare how these four countries—that share a common heritage of English common law—have dealt with indigenous land rights from their inception to the present day. In particular, analysis will focus on aboriginal land claims and land rights, which given the complexities of this area of law bears relation to aboriginal status and jurisdiction. This paper compares the different ways that each of these four countries has dealt with indigenous land rights. Part I will examine the history of governmental legal relations with indigenous people in the U.S., Canada, Australia, and New Zealand. Part II will assess commonalities and differences between the three systems. The U.S. has gone the farthest in allowing indigenous self-government with federally recognized tribes, tribal courts, reservations, Indian gaming, and special property rights in Indian artifacts. Canada has a similar system, albeit more centralized to the federal government in Ottawa. Australia and New Zealand are only slowly beginning to recognize indigenous self-government and traditional land claims as part of legal transformations that began in the 1960s. Different path dependencies, like the relative survival and integration of indigenous groups likely explain these differences, while common eras of legal thought have transformed each country’s legal relationship with indigenous citizens. I. CONTACT, CONQUEST AND CONTROL A. United States of America The first humans are believed to have arrived in North America 15,000 years ago from Siberia, soon diversifying into numerous linguistic and cultural groups: today’s Native American groups. In 2020, the Census Bureau reported that approximately 9.7 million U.S. citizens are Native American or Alaska Native, the descendants of around two percent of the original population that survived war and disease during the European settlement of North America. British colonization involved more settlers than French or Spanish colonization, which often prioritized large land grants or fur trapping. British settlers clashed with Indians in the North American settler colonies as early as 1622. During the 1636 Pequot War, settlers crushed the Pequot Indians in Connecticut. Settlers in New England were almost displaced by the 1675 King Philip’s War, but the assassination of Metacom (also known as King Philip), the Narragansett leader resulted in a British victory. European powers staged several worldwide wars in the 18th century that typically pitted France and Indian allies against Britain. France was forced to yield many of its North American territories when it lost the Seven Years War, placing Indians in a dangerous position within territories claimed by Britain. Despite the bruising loss of Seven Years War and the continued harm of European diseases, Indians enjoyed some protections from London. In British North America, the King imposed a ban on settlement west of the Appalachians, adding to a list of grievances seized upon by the American colonists in the American Revolution. The early U.S. grew rapidly westward through a combination of land purchases and conquest, resulting in conflict with indigenous peoples. Mass deportations of Native Americans characterized the early decades of the republic, followed by a period of internecine conflict and massacres on the frontier. In Johnson v. M’Intosh, in 1823, the Supreme Court famously asserted federal authority over Indian tribes based on the doctrine of discovery. By asserting broad federal authority over Indians, the case paved the way for subsequent forced removal of Indians to reservations. In the South, the so-called “Five Civilized Tribes,” the Cherokee, Creek, Chickasaw, Choctaw, and Seminole tribes engaged in advanced trade and agriculture, held slaves, and used written languages. Despite the cultural similarities between the Five Civilized Tribes and white Georgia citizens, Georgia urged Congress to act against the tribes to clear land for farming and gold prospecting. The Supreme Court, led by Chief Justice Marshall held for the Cherokee and indicated that tribes are in effect domestic dependent nations. Nonetheless, the Andrew Jackson Administration went ahead with the deportation of Cherokees westward to Oklahoma resulting in 8,000 deaths along the Trail of Tears. Native Americans, even those with Westernized American customs were seen as occupying valuable land that could be freed up for agriculture and inhabitation by new arrivals. A little more than a decade later, the U.S. launched the Mexican-American War, seizing huge swaths of territory in northern Mexico, parts of which were already depopulated of Mexican nationals by Comanche raiding on the Plains. As a condition of the Mexican Cession, the U.S. agreed in the Treaty of Guadeloupe-Hidalgo to eliminate the Comanche threat posed to northern Mexico. The addition of lands in the West as a result of the Mexican Cession and the settlement of territorial disputes with Britain in the Pacific Northwest increased territorial conflict between European settlers and Indians, particularly as American settlements appeared in the fertile Willamette Valley of Oregon and the San Francisco Bay as a result of the 1849 gold rush. State governments and private actors were often as callous as the federal government in their treatment of Native Americans. In perhaps the most extreme example, California in 1850 passed Chapter 133, effectively authorizing genocide against its native residents, including taking natives into indentured servitude. By the early 1870s, as many as 16,000 native California Indians were exterminated or worked to death. In the aftermath of the Civil War, Congress feared disunity in the U.S. Native Americans were perceived as standing in the way of economic progress and particularly in the West still controlled valuable lands that the government wanted to open up for settlement. Perhaps due to federal experience with the Five Civilized Tribes, Native Americans were viewed as being on a more equal footing with white Americans in the 19th century’s racial hierarchy if they could be retrained in the ways of “civilization.” In 1871, the President and Senate were formally stripped of their power to negotiate treaties with tribes, but in fact agreements continued to be made, adopted as legislation by Congress. After the end of formal treaty making, Congress shifted from a nation-to-nation approach to dealing with Indians to a more unilateral policy of assimilation. Between 1887 and 1934, the Department of the Interior allotted parcels of land to Indian heads of households. The land would be held in trust for twenty-five years, before the Indian owner gained full-title. But full-title would expose these properties—many on marginal land—to state and local taxation, often resulting tax foreclosure. The result was a rapid fragmentation of Indian lands, with the goal of assimilating Indians with the rest of American society. Even as tribes were dismantled through federal Indian land policy, the federal government launched a formal policy of assimilating Native Americans culturally through the form of forced enrollment of native children in boarding schools after 1879. In the words of Richard Henry Pratt, the founding director of the Indian residential Carlisle School, the goal of the Bureau of Indian Affairs was to “Kill the Indian, save the man,” by requiring English usage and converting Indians to Christianity. Between 1879 and 1960, an estimated 100,000 Native American children passed through boarding schools, and even as late as 1971 seventeen percent of Native American children were in foster care or institutions. Indians also lost out at the state level, particularly in the binary racial system of the Jim Crow South. The Houma Indians in Louisiana, for instance, were classified as “coloured” by the state supreme court in 1918, and were subject to racially segregated schools. Houma marriages were unrecognized by the state and as a result Houma children were illegitimate and could not inherit land. Once oil was discovered in the region, private actors exploited lack of English knowledge among the Houma to fraudulently acquire land and conduct tax sales. The allotment system greatly weakened the potential for Indian jurisdiction and self-government by physically fragmenting land. The Bureau of Indian Affairs was forced to confront the scathing Meriam Report which relayed terrible conditions on reservations and poor land utilization with the trust system that prevented clear title and access to loans. The Indian New Deal began in 1934 with the Indian Reorganization Act, the first statute that allowed tribes to opt out of federal legislation, ending further allotments and directing the Secretary of the Interior to repurchase land for tribes. Congress changed course again in 1953 with a fresh embrace of assimilationist policies. Although the boarding schools program formally ended with the 1953 Indian Termination Act, the Act had other far-reaching consequences terminating tribal governments, eliminating recognition, revoking federal funds, and privatizing tribal businesses. With the passage of Public Law 83-280, Congress terminated its relationship with 109 tribes and ordered that tribal lands be privatized to individual tribal members. Six states gained full civil and criminal jurisdiction over Indian reservations. President Johnson signaled a different direction with the passage of the Indian Civil Rights Act, in 1968, mandating tribes to follow many aspects of Constitutional law, and established the National Council on Indian Opportunity (NCIO)—although the Johnson Administration’s efforts may have been largely assimilationist. The Nixon Administration pushed for tribal self-determination, which took the form of the Indian Self-Determination and Education Assistance Act. The 1970s brought a fresh assertion of treaty rights to reservation and off-reservation property rights. In United States v. Washington, in 1974, the U.S. sued to settle Indians’ off-reservation treaty fishing rights. Judge Boldt, deciding the case in favor the Indians looked at what the Indians would have understood at the time the treaty was negotiated. “There is no indication that the Indians intended or understood the language ‘in common with all citizens of the Territory’ to limit their right to fish in any way.” Considering what the signers of the treaty would have understood at the time, communicating in Chinook Jargon, the Ninth Circuit held for the Indians again in 2017, when faced with a challenge to culvert construction by the State of Washington. Congress essentially created new property rights in Indian cultural artifacts in 1990, as part of an effort to right historical wrongs and bolster tribes. The Native American Graves Protection and Repatriation Act of 1990 (NAGPRA) is the cornerstone of a statutory regime intended to better protect Native American cultural artifacts. NAGPRA provides that items may be excavated with a permit under section 4 of the Archaeological Resources Protection Act of 1974, in consultation with tribes. NAGPRA emerged in 1990 out of the Reservoir Salvage Act of 1960, the Archaeological Resources Protection Act, the American Indian Religious Freedom Act, and the 1989 National Museum of the American Indian Act. NAGPRA applies to four types of items: (1) human remains, (2) funerary objects, (3) sacred items, and (4) objects of “cultural patrimony.” Items of cultural patrimony are “items having ongoing historical, traditional, or cultural importance central to the Indian tribe or Native Hawaiian organization itself.” Courts have upheld “cultural patrimony” against void for vagueness constitutional challenges, such as affirming the conviction of an art dealer selling Hopi masks. Many states have adopted state-level statutes similar to NAGPRA. The advent of NAGPRA at the federal level, and similar legislation at the state level is in effect a legislative record of governmental interest in proactive protection of Native American culture. On reservations experiencing new forms of self-government, Indians began a process of tribal entrepreneurship within the unique jurisdiction of reservations. In 1979, the Micossukee Tribe in South Florida opened the first Indian casino in the U.S. Indian gaming has emerged as a major industry, and a key economic driver for many reservations. The Supreme Court in 1987 held that Indian tribes could regulate gaming free of state interference. Congress subsequently passed the Indian Gaming Regulatory Act of 1988. The statute created three categories of Indian gaming, including Class I traditional Indian gaming and low stakes games that fall under Indian jurisdiction. Although many casino activities like blackjack, craps, and roulette fall under the broadly defined Class III, outside of sole Indian jurisdiction, the Act created a framework for tribes to negotiate pacts with state governments to establish casinos. Today, land held collectively by Indians is referred to as Indian Country. Land policy looms large on Indian reservations. Despite the post-1968 federal support for tribal sovereignty, large areas of land are still held in trust by the federal government, wherein title rests with the federal government while individual Indians (or tribes) have a right to use the land. Trust land is encumbered by complicated bureaucratic processes: even obtaining a mortgage requires approval from the Secretary of the Interior. Tribes have limited recourse in statute to challenge federal breach of fiduciary duties on trust lands. Indian tribal jurisdiction is extremely chaotic. State governments often assert jurisdiction over state highways that travel through reservations and water rights. Nevertheless, tribal jurisdiction—and entire tribal court systems—have appeared since the 1970s. Particularly with the rise of Indian gaming, many tribes employ large numbers of nonmember employees and vendors. Similarly, many non-residents married to tribal members or those that provide services on reservations enter into leases on reservation land. Members and nonmembers alike may be haled into tribal courts in civil cases, and may even be asked to serve on tribal juries. A pair of Supreme Court cases in 1976 and 1993 held that states may not regulate on Indian lands, although the six states governed by Public Law 280—Alaska, California, Minnesota, Nebraska, Oregon, and Wisconsin—are an exception. In 1987, the Supreme Court indicated that tribes have “presumptive” jurisdiction over nonmembers on a reservation, but subsequently left the question open. Tribes can also exercise criminal jurisdiction, concurrent with federal jurisdiction under the 1885 Major Crimes Act. U.S. v. Lara in 2004 affirmed that tribes posses the power to prosecute rooted in tribal sovereignty rather than federal delegation. The scope of Indian jurisdiction remains uncertain. The Supreme Court in 2020 in McGirt v. Oklahoma held that Congress never extinguished the Creek Reservation in eastern Oklahoma, and therefore the Major Crimes Act applied to all Indians in the region. Since the late 1960s, the U.S. has revamped tribal sovereignty, tribal jurisdiction, and Indian land claims. It created a legal framework for Indian gaming, permitted tribal courts, restored many traditional hunting and gathering rights recognized in treaties, and even created a form of property right in Indian crafts and Indian artifacts. Nevertheless, this legal transformation is incomplete, granting an outsized role to the federal government in Indian affairs, stunting property rights, and leaving many jurisdictional questions uncertain. B. Canada In its North American territory that would later become Canada, Britain displaced France as the major colonial power and ultimately assumed control of land held privately by the Hudson’s Bay Company. Britain initiated over 400 treaties with Indians. The Crown did not permit negotiation. Rather, if Indians opted in to treaties they would gain protection from encroachment on their land, annuities, goods, and protected game rights. Treaty designated Indian lands came to be known as “reserves.” Indians have occupied a place in the Canadian constitutional framework since the early origins of Canadian constitutional law with the Royal Proclamation of 1763. Even before the 1867 Canadian Confederation, Canadian legislatures created statutes addressing Indian status, notably An Act for the protection of the Indians in Upper Canada, in 1850. The Act extended protections against intrusion onto Indian lands in Ontario. Seven years later, An Act to Encourage the Gradual Civilization of Indian Tribes in This Province and to Amend the Laws Relating to Indians created a definition of who qualified as an Indian, including those “Indian blood or intermarried.” Canada rotated through several different definitions before adopting the 1951 Indian Act, creating a register of Indian band members. The Privy Council in London made a similar determination to the U.S. Supreme Court’s Johnson v. M’Intosh holding in its 1888 decision, St. Catherine's Milling and Lumber Co. v. The Queen. The Council held that discovery vested title over Canada in the Crown. Lord Watson, in the Council’s holding, indicated that the sovereign could extinguish native title in land if they chose to do so. Decades later, in 1974, the Canadian Supreme Court reaffirmed this view in Calder v. Attorney General of British Columbia. The Canadian government did choose to extinguish Indian title in the late 19th century. Between 1871 and 1921, it extinguished most Indian title in the prairie provinces using the Natural Resource Transfer Agreements to provide hunting, fishing, and gathering rights in exchange for the extinct title. Both the Canadian Constitution of 1867 and 1982 grant Parliament exclusive power over Indians. The Indian Act of 1876 created limited self-government for Indians with the goal that Indian bands would come to conform with non-Indian communities around them. The 1985 Indian Act also took a limited approach to Indian self-government. The Minister of the Department of Indian Affairs and Northern Development exercised the power to control band finances and the structure of band government, with further limits on bands imposed by preexisting treaties and provincial law. Canada entered a new phase of relationships with Indians in 1995, with the Implementation of the Inherent Right and the Negotiation of Aboriginal Self-Government. Today, most bands are still governed by the Indian Act, with very limited self-government, and most power exercised through control over land allotment. As of 2020, 43 Indians bands have removed themselves from the provisions of the Indian Act and negotiated self-government agreements with the Canadian government. Indigenous Canadians won a few major victories in the 1990s. First among these victories was the shift in federal attitudes toward negotiated self-government. In 1999, the Canadian Parliament broke up the vast Northwest Territories, creating Nunavut with the Nunavut Act and Nunavut Land Claims Act as a self-governing Inuit region. Nunavut is one of four self-governing Inuit regions. In Nunavut, together with the Kativik Regional Government, government is open to all residents regardless of Inuit status, whereas Nunatsiavut in northern Labrador is exclusive to Inuit people. The 1990 case R. v. Sparrow also proved pivotal. The Canadian Supreme Court held that the exercise of federal power—such as the enforcement of fishing laws—must be balanced with the government’s fiduciary duty to Indians. In stark contrast to the U.S. adoption of Indian gaming, Canada amended its Criminal Code in 1985 to grant provinces exclusive authority over gambling. At the time, the Shawanga First Nation in Ontario had opened a gambling parlor perhaps attempting to stake out a situation similar to tribes in the U.S. The Ontario Provincial Police arrested the band’s current and former chief, and both were convicted. On appeal, the Canadian Supreme Court held that there was no aboriginal right to conduct gambling operations, essentially foreclosing Indian gaming in Canada. Prior to the 1960s, Canadian courts seldom upheld Indian hunting, fishing, and gathering rights. In its 1996 Van der Peet decision, the Canadian Supreme Court indicated “[A]boriginal title, and aboriginal rights in general, derive from historic occupation and use of ancestral lands by the natives and do not depend on any treaty, executive order or legislative enactment.” As such, Indians enjoy constitutional rights different than those of other Canadians. Hunting rights have played a role in broadening the rights of Metis—a group of indigenous Canadians of mixed European and Indian heritage prominent in the prairie provinces, and first formally recognized in the 1982 Constitution. In 2003, Metis petitioners prevailed in R. v. Powley creating a test for Metis community rights and expanded hunting rights in land allocated by the federal government in the 1870s. Metis petitioners gained further recognition in the 2013 MMF v. Canada decision and 2016 Daniels v. Canada which held that the federal government followed improper constitutional process when it ceded Metis land to Manitoba, and therefore federal jurisdiction should apply to Metis people. Thus far, the rulings have not reversed the status of land rights in provinces like Manitoba but did prompt the Canadian government to provide new financial support to the Manitoba Metis Federation after 2018. Indigenous self-governance is still in its infancy in Canada. The federal government remains the primary force in the lives of most reserve dwellers under the Indian Act and maintains considerable trust land, like the U.S. federal government. Despite this overall state of affairs a series of Canadian Supreme Court decisions and new treaty negotiations are changing the nature of land rights, self-governance, and jurisdiction. C. Australia Australia was settled around its coasts at approximately the same time, in contrast to the east-to-west settlement pattern of the U.S. and Canada. Founded as a British penal colony in the 1780s, Australia soon emerged as an egalitarian frontier society founded on the export of agricultural goods and mining. British settlers encountered Australian Aborigines with very low levels of technology, even compared with Indians in North America. Through disease and intentional conquest, many of these groups were virtually extirpated. Exact demographic estimates of pre-contact population in Australia do not exist, although historical evidence suggests dramatic population losses. Because of a dramatic imbalance in technology between Aborigines and British settlers, British settlers often massacred Aborigines outright or even hunted individual Aborigines for sport, rather than engaging in the kind of organized wars seen in North America and New Zealand. British military units massacred Aborigines in New South Wales and Van Diemen’s Land throughout the first two decades of the 19th century to clear the way for crops and livestock needed for the colonies to survive. Estimates suggest that Aborigine population in Victoria dropped from 10,000 in 1835 to less than 2000 by 1853 as a result of massacres. In Tasmania, a desire to grow sheep production resulted in a nearly complete elimination of the isolated Tasmanian Aborigines, who had regressed to a level of stone tool technology more characteristic of the early Paleolithic than even their neighbors on the Australian mainland. Despite massacres and hunting of Aborigines throughout the rest of the 19th century by settlers, British humanitarianism ultimately prevented a wholesale elimination of Aborigines. Instead, Aborigines were exhorted to adopt a European way of life or lived in remote isolation in the Australian outback. The remoteness of much of Australia likely saved the lives of some Aborigines. Indeed, small bands of Aborigines living an essentially Paleolithic lifestyle continued to emerge from the desert until as late as 1984. Aborigines retained land and water rights during the process of British settlement, although these claims often existed in a legal gray area. The Australian Constitution of 1901 did little to resolve uncertainty. The Yolngu people in the Northern Territory challenged a federal government bauxite mining agreement with the mining company Nabalco, in 1968, on the grounds that they held title to part of the Gove Peninsula. Because of a lack of documentation, the court looked to examples from other British settler societies, holding that no doctrine of communal native title existed in other systems. The Gove Land Rights case prompted the Australian Parliament to adopt the Aboriginal Land Rights Act of 1976. The law gave Aborigines a powerful veto on mine development and freehold title in almost 50 percent of the Northern Territory. Eddie Mabo, a Torres Strait Islander, filed suit in 1982 for native title to the Murray Islands—a subpart of the Torres Strait Islands. Rejecting past “discriminatory doctrine,” the Australian High Court relied on international law rather than common law to determine that common law rights of indigenous title exist. Parliament provided a statutory answer to the question with the Native Title Act of 1993, formally recognizing common law rights of indigenous title. The High Court developed a test for native title: (1) native laws and customs that can be translated into land rights, and (2) a connection to land and water rights claimed through laws and customs. Because most Aboriginal laws and customs are unwritten, the High Court called for physical evidence and continual existence from before British colonization. In parallel with recognition of native title, most Australian states have restored traditional fishing rights. Western Australia and Victoria both recognize customary fishing permits for Aborigines, whereas the Northern Territory exempts Aborigines from fishing regulations when fishing takes place on land or water subject to native title. Even with growing recognition of native title, Australia lacks a government-to-government relationship with Aborigine groups. A few Aboriginal groups, principally the Ngarrindjeri Nation and the Gunditjmara people go through the motions of self-government, with deliberative democracy and relationships with state and local government. The states of South Australia and Victoria have both entered preliminary treaty negotiations with Aborigine governments, based up on South Australia’s experience creating the Ngarrindjeri and Narungga Regional Authorities. Thus, Australia has forms of indigenous land rights, but nothing like the kinds of indigenous self-government found to different degrees in the U.S. and Canada. D. New Zealand New Zealand is a country with an English-derived common law legal system, where the 1840 English-Maori Treaty of Waitangi serves as the foundational constitutional document. New Zealand’s genesis is unusual, because early British settlers encountered Maori Polynesian tribes with a high-level of organization, firearms, and exposure to Old World diseases who proved much more robust in the face of European settlement than Indians in the North America or Aborigines in Australia. War broke out between the British and Maori in 1860, engulfing the North Island in conflict. Under the New Zealand Settlements Act of 1863, four million acres of land were expropriated from areas deemed to have been in rebellion, from rebels and loyalists alike. Prompted by the war and declining Maori land transfers in the 1850s, the British government created the Native Land Court in 1864. Hearings occurred far from where the land was situated and Maori individuals often incurred high costs having land surveyed or traveling to hearings. Decisions typically resulted in land transfer and sale. Maori groups banded together forming the informal Maori Parliament that existed between 1892 and 1902. British legislators refused to recognize the Maori Parliament and even filed out of hearings to avoid a quorum to vote on a proposed Native Rights Bill. In an earlier effort to defuse the tensions that resulted in the Maori Wars of the 1860s, the General Assembly had granted four—later 15 seats—to Maori voters. As a result, Maori legislators in that forum were able to introduce bills but lacked the political strength to pass them, especially as universal male suffrage for more numerous British New Zealanders came into effect after 1879. British settlement resulted in dramatic demographic changes for Maori people. Between contact and the 1890s, life expectancy dropped from 30 to as little as 23 years, and the population fell from an estimated total of 100,000 in 1769 to about approximately 42,000. If taken as accurate, these numbers indicate a nearly 60 percent drop in population—a tremendously high toll, except in comparison with the 90 percent or more population drop among indigenous people in North America and presumptively Australia. Maori land holdings dropped precipitously throughout the early 20th century, falling to just one-third of 1910 levels in 1930, or nine percent of the North Island. Beginning in 1910, Maori incorporations formed as a means of collective ownership to continue control of traditional lands. Owners amassed individual title under a committee of management, leveraging common law-derived trust law to maintain communal land ownership. Poor economic conditions in the countryside prompted large numbers of Maoris to leave rural areas for the cities, where they faced racial discrimination in housing and public accommodations. Parliament adopted the Maori Affairs Act of 1953, which granted official status to the Maori language, but simultaneously supported assimilation for Maoris and promoted continued land transfers—dropping land holdings in the North Island to a mere four percent of all land. As indigenous rights became more favored after the 1960s, Parliament in 1975 passed the Treaty of Waitangi Act, creating a Waitangi Tribunal to investigate Maori claims. The Te Ture Whenua Maori Act 1993 redefined Maori landownership. The Act subdivides Maori land into three categories: (1) freehold land, that with rare exceptions has never been out of Maori ownership, (2) customary land, held under customary ownership, and (3) general land, reclassified as Maori by five owners who choose to reclassify it through the Maori Land Court. A total of 129 Maori incorporations and 20,000 trusts hold 64 percent of these lands. In stark contrast to the history of the Native Land Court, land transfer out of Maori ownership requires approval of 75 percent of registered owners and the Maori Land Court. Therefore, most land is used commercially or residentially through leases. The Land Court wields considerable power and can in rare circumstances remove incorporation trustees. Although the Land Court has created online land information sharing in the 2000s, access to information about Maori lands can be limited. Access to credit is challenging for Maori lands because of multiple owners and a complex land ownership system that limits alienation to Maoris. In the 2020s, Maori land comprises 5.6 percent of New Zealand’s land area. Compared with general land holdings, these lands are more likely to be landlocked parcels, swampy, or usable only for forestry. Today, Maori people in New Zealand have many civil society organizations and what amounts to partial recognition by the government, but do not have self-government per se or a separate Maori Parliament, as advocated by some activists. Despite many setbacks since the mid-19th century, Maori New Zealanders were able to retain some lands until eventual recognition of indigenous rights by using British-style trust and property law to combat state action against them. II. COMPARING LEGAL RESPONSES The U.S., Canada, Australia, and New Zealand share similar legal and cultural origins. All four are settler states that displaced indigenous people without fully extirpating those communities. The four countries have chosen to handle indigenous land rights in different ways based upon different path dependencies. During a first phase of settlement and nation-building beginning in the 1600s in North America, the 1780s in Australia, and the 1840s in New Zealand, all four countries attempted to absorb indigenous people between initial settlement and the mid-20th century. Only in the 1960s did the political winds began to change affirmatively in favor of indigenous rights and a new recognition of property rights. Perhaps the most notable difference between North America and Oceania is the presence of reservations in both the U.S. and Canada. Reservations began as preserved lands or substitute lands for tribes that yielded more valuable tracts of land to settlers. Indeed, reservations offer territory to domestic dependent nations, explicitly recognized in the U.S. Constitution and case law, and less formally recognized in Canada. Over time, reservations—especially in lightly settled frontier areas—became assembly points to control Indians, distribute services, or conduct assimilation programs. The precise reasons for different outcomes require historical analysis beyond the scope of this paper. Preliminarily, the U.S. and Canada were forced to deal with Indians as nations, prompting the creation of treaties and reservations. Among the four settler societies, the U.S. has both the largest overall population and perhaps the most evenly distributed population apart from New Zealand. As a result, the U.S. faced early pressure from state governments to remove Indians to less desirable land and heightened pressure to assimilate Indians. Yet it also developed one of the most comprehensive reservation systems apart from Canada. By contrast, Aborigines were so few in number and remotely situated that Australia never developed the same form of reservation system. Similarly, New Zealand marginalized Maoris but did not adopt a formal reservation system. Moreover, in the New Zealand example, Maoris had more recently arrived from the Old World and therefore did not die off at the same rate due to European diseases, forcing British New Zealanders to deal with Maoris as something like a peer group. Australia reached some of the greatest heights of massacres and extirpation, but also allowed many Aborigines to remain in a legal twilight in remote parts of the continent. It never went through the same process of creating reserves or treaties and only in recent decades has begun to offer retroactive land claims. The revival of indigenous land rights after the 1960s is likely the result of several factors: (1) the discrediting of racism in World War II, (2) the American civil rights movement and equivalent movements, and (3) a desire to clean up poverty and racial strife to appeal to newly independent developing countries. These factors played out almost simultaneously in all four countries between the 1960s and the 1990s. In the U.S., Congress initiated this process in 1968 with courts following suit through significant decisions like the Boldt case and Morton v. Mancari throughout the 1970s. Although anti-racism and civil rights was probably the main factor, all four countries experienced a revival of interest in decentralization during this period of time, which may have prompted policymakers to improve decentralization for indigenous people. Perhaps because of its federal traditions and regionally concentrated Indian population, the U.S. was the first of the four countries to embrace indigenous self-government and to create special jurisdictional privileges, allowing Indian gaming and tribal courts. Canada, by contrast, was slow to allow indigenous self-government until its halting initiative to permit negotiated self-government after 1995 for Indian bands that chose to opt out of the limitations of the Indian Act. Yet, the remoteness of parts of Canada promoted perhaps the most dramatic concession to indigenous land rights and self-government anywhere in the world: the creation of Nunavut in 1999 and other authorities like Nunatsiavut in northern Labrador. Compared with the other three countries, the U.S. has gone the furthest in considering special indigenous jurisdiction (apart from the notable exceptions in northern Canada). Indians have separate court systems with criminal and civil jurisdiction—criminal jurisdiction that has expanded, rather than shrunk in the 21st century—affirmed by startling decisions like McGirt. Perhaps as a result of the lack of formal self-government, neither Australia nor New Zealand has adopted special jurisdictional or gaming privileges for their indigenous inhabitants. But as a part of the indigenous land rights revolution, both countries have expanded indigenous land rights and hunting rights along similar lines to the U.S. and Canada. All four countries should undertake a systematic analysis of indigenous land rights, creating better streamlining through statute to preserve indigenous rights for the future in a fashion that promotes economic development, individual, and collective sovereignty. CONCLUSION Indigenous land claims and questions of status and self-government that attach to them are far from settled. All four major Anglosphere countries emerged as settler societies, expanding rapidly through high growth rate settler colonialism and land speculation. Through this process, indigenous people in each country lost out to varying degrees. In the U.S. and Canada, settlers dealt with indigenous people as nations, engaging in forced removals but also brokering treaties, and laying the groundwork for the restoration of tribal jurisdiction in the late 20th century. Australia virtually wiped out Aborigines and never negotiated with Aborigines as nations, yet preserved a modicum of rights that it restored in the area of land and fishing through court decisions and acts of Parliament after 1968. New Zealand’s indigenous people did not die off at the same rate as indigenous people elsewhere, countering settler power through clever political organization and use of land law, until the promise of the Treaty of Waitangi was restored in the 1980s. Indigenous land rights remain in flux in all four countries—an unresolved area for policymakers to revisit.

Originally published December 26, 2022 Global North Institute is excited to announce that Endangered Language Association (ELA) will merge with GNI in 2023. ELA is a 501(c)3 non-profit charitable organization dedicated to the preservation of endangered languages and cultures around the world through a process of “language triage,” raising awareness, and raising funds. Adding ELA to GNI is an important development for both organizations. Here at GNI, we believe strongly in cultural vitality and linguistic rights—and ELA can help to support our mission in that area. Simultaneously, ELA will be better able to fulfill its mission as an initiative of GNI, taking advantage of streamlined solicitation registrations, combined fundraising efforts, and shared compliance. If the need arises in the future, we will ensure that ELA can get off the ground again as an independent organization. For now, GNI plans to keep ELA’s name, website, and social media presence. Our supporters will be glad to know that our exempt purpose is set to take on a new dimension by bringing ELA into the fold.

Originally published October 4, 2022 At a high point for international interventionism in the spring of 1999, NATO launched widespread air strikes across the Federal Republic of Yugoslavia—today’s Serbia. Even with the benefit of laser-guided bombs, NATO fighter-bombs struck targets almost indiscriminately, knocking out bridges, destroying hospitals, and igniting a major oil refinery in the northern city of Novi Sad. A year later, Yugoslavian citizens rose up peacefully and removed quasi-dictator Slobodan Milosevic, ultimately handing him over for prosecution in a special international tribunal in the Hague. The entire air operation against Yugoslavia was predicated on preventing ostensible ethnic cleaning against ethnically Albanian Kosovars in the southwest Yugoslavian region of Kosovo. NATO ground forces, constituted as KFOR, took over administration in Kosovo. KFOR still exists and is still in-place in Kosovo. NATO has been unable to withdraw due to ethnic strife it did not anticipate. A large plurality of Kosovo’s population are Orthodox ethnic Serbs. In 2004, Kosovars launched pogroms against their Serbia neighbors destroying homes and churches. NATO’s remaining 5000 troops are essentially unable to withdraw due to concerns about ethnic cleansing against Serbs.[1] Carving off Kosovo from Serbia by NATO fiat was a watershed moment. Before the controversial interventions in Afghanistan, Iraq, and Libya, it marked a high point of NATO internationalism and prompted George W. Bush to condemn interventionism on the campaign trail in 2000. It also alarmed the Russian Federation. Leaders in Moscow notably signed on to NATO’s air campaign against the Republic Srpska in Bosnia, in 1995, to stop ethnic cleansing, but grew suspicious of NATO internationalism after 1999. Russia makes much of the Kosovo intervention and the unilateral declaration of Kosovo’s independence in 2008 (the gap in time between NATO’s intervention and Western recognition of Kosovo is the same as the gap between Russia’s intervention in the Donbass and its recognition in of the Luhansk and Donetsk People’s Republic). Lingering problems in Kosovo nearly came to a head in the summer of 2022 when the Kosovar government threatened to ban Serbian license plates. Ethnic Serb villages along the fringes of Kosovo, on the Serbia border itself, blockaded roads in protest and the Serbian prime minister announced the possibility of war. Fortunately, Kosovo backed down. Nevertheless, this latest flare up suggests that there is a lingering risk of conflict.[2] NATO should help to broker talks between Serbia and Kosovo that would result in Serbian recognition of Kosovo and the transfer of ethnic Serb villages back to Serbia. After 23 years, it is time for the longest modern experiment in nation-building to come to an end. References [1] Failure to Protect: Anti-Minority Violence in Kosovo, March 2004, Human Rights Watch, (Jul. 25, 2004), https://www.hrw.org/report/2004/07/25/failure-protect/anti-minority-violence-kosovo-march-2004. [2] Thomas O. Falk, What’s behind the renewed tensions between Serbia and Kosovo?, Al Jazeera, (Aug. 4, 2022), https://www.aljazeera.com/news/2022/8/4/whats-behind-the-renewed-tensions-between-serbia-and-kosovo. Image Credit: Mrika Selimi, Unsplash

Originally published October 4, 2022 World War II was the deadliest war in human history, claiming between 60 and 100 million lives through battles, starvation, disease, and mass killings. In the nearly 80 years since the war ended, we have never seen a conflict on the same scale. The Cold War was global in its reach and occasioned widespread militarization until the 1990s, but fortunately never ended in a cataclysmic World War III. Sometimes termed the “Long Peace,” political scientists explain this period as a time of heightened peace due to the presence of nuclear weapons. However, there are some problems with this theory. Although global total wars have not recurred, lethal proxy wars have claimed millions of lives and ruined many parts of the war. Because of constant resupply with equipment and material by outside powers, proxy wars can go on much longer than other types of wars. The Angolan Civil War, for instance, started in 1961 as a war of independence and did not end until 2002. Similarly, the War in Afghanistan has continued unabated since 1978. Proxy wars have grown more complicated and multi-lateral. This is especially true in places like Yemen, Syria, and Afghanistan. Proxy wars may avoid direct confrontation between nuclear armed powers, but they can easily generate entanglements that lead to wider war. We likely face a heightened risk of nuclear war—even if accidental—as a result to the NATO-Russia proxy war in Ukraine. To date, arms control treaties have limited land mines, cluster bombs, chemical, biological, and nuclear weapons, and in some places, stockpiles of strategic arms.[1] Instead of the very granular and difficult to enforce instruments like the newly created Smalls Army Treaty, world leaders would be better served by negotiating a new instrument to prevent proxy wars. For the purposes of this article, let’s identify two types of proxy wars. In one, two large adversaries pour weapons, food, fuel, and medical supplies into a third country to arm two or more sides in a civil war. In the other, a major power sends its armed forces or allied armed forces to help one side in the war prevail over the other, and may encounter weapons and advisors supplied by their advisor. Examples of the second case would be the US in Korea and Vietnam or Cuba doing the Soviet Union’s bidding in Angola. Some situations blur these lines, like the US assistance to Ukraine with targeting HIMARS missiles and advising the Ukrainian military with satellite imagery and strategic guidance.[2] A treaty would need to limit resupply to only neutrally available food and medical supplies, except where countries have a preexisting or newly created mutual defense arrangement. Situations where one country sends its uniformed armed forces to intervene on another country’s behalf might be excluded from this instrument. The US had the permission of South Vietnam to fight the Viet Cong. Unlike many treaty instruments, a proxy war prevention treaty satisfies the reciprocity found in traditional statecraft and would be easier to self-enforce—or retaliate among parties subject to such an agreement. References [1] Treaties & Agreements, Arms Control Association, (2022), https://www.armscontrol.org/treaties. [2] See generally Mia Jankowicz, The US has a veto on what Russian targets Ukraine hits with its HIMARS artillery, general suggests, Business Insider, (Aug. 3, 2022), https://www.businessinsider.com/himars-us-has-effective-veto-over-russian-targets-report-says-2022-8.

Faced with mounting government debt and the high cost of paying for government programs, the Biden administration has launched a worldwide initiative for countries to commit to a fifteen percent minimum corporate tax. From early roots in Swiss banks over a century ago, various forms of offshore finance and tax mitigation have flourished as finance globalized throughout the 20th and early 21st century. Dubbed “offshore” finance because of the many small island nations and dependencies involved in this type of financial structuring, offshore financial centers commonly provide favorable tax laws, higher rates of return, reduced regulation, and above all confidentiality.[1] Responding to America’s financial crisis in 2009, the U.S. implemented increasingly aggressive tax enforcement. Congress passed the Foreign Account Tax Compliance Act (FATCA), launched international prosecutions, and coerced foreign banks to disclose the information of U.S. taxpayers. This paper will explore what comes next for the world of offshore finance, tax mitigation, and overseas tax enforcement, with a particular focus on Ireland and the U.S. Part I will review the nature of offshore finance and tax mitigation, and U.S. enforcement efforts to-date, as well as the proposed fifteen percent minimum tax rate. Part II, in turn will analyze potential responses by the Irish tax authorities. Part III will examine the ways the U.S. can modify its own tax policies—and enforcement strategies—to counter potential changes in the coming years whether a fifteen percent minimum rate is implemented, or flaunted. This paper contends that from the standpoint of Irish policymakers, there remains a bright future for tax mitigation and it further argues that Congress and the US Internal Revenue Service (IRS) can do more to foster federal revenue streams through a different approach to policy and enforcement. I. BASE EROSION AND PROFIT SHARING, TAX MITIGATION, AND OFFSHORING STRATEGIES A. Tax Policy and Enforcement In the years after World War II, the small cadre of advanced, industrialized countries in North America, Europe, and East Asia diverged considerably in their approaches to taxation.[2] Germany and Japan modified their tax policies to promote export led growth; Germany for instance emphasized rapid administrative changes to its tax policy. In Northern European countries like Sweden, governments adopted aggressive VAT tax regimes, whereas the U.S. leaned heavily on more progressive personal income tax and corporate income tax. [3] Japan, meanwhile, opted for individual income tax cuts, a high savings rate, and significant spending on public works, coupled with social spending—paid for with taxation of export-oriented companies and progressive taxation.[4] In the 1960s, Peggy (Richman) Musgrave popularized the debate about whether U.S. international tax policy should favor capital export neutrality or capital import neutrality.[5] In the capital export neutrality model, multinationals are subject to worldwide taxation with an unlimited credit for foreign income taxes paid, whereas capital import neutrality would exempt U.S. corporations from paying taxes on revenue in a foreign country to avoid economic disadvantages.[6] This debate has morphed into a new realm, led by professors Mihir Desai and Jim Hines, who have written of capital ownership neutrality.[7] To allow U.S.-based companies greatest flexibility in foreign acquisitions, a capital ownership model (like capital import) would involve a switch to territorial taxation, unless other major economies were to shift to a worldwide taxation system.[8] The U.S. emphasized worldwide taxation beginning with the Revenue Act of 1918 and the subsequent Revenue Act of 1918, a state of affairs that existed until the shift toward a hybrid model with the 2017 Tax Cuts and Jobs Act.[9] Under the current hybrid system, certain thresholds kick-in for foreign revenue. Foreign income representing a normal, ten percent return on tangible asset depreciation used to produce foreign income is exempt from U.S. taxation.[10] However, income above the ten percent threshold is subject to U.S. taxation with a fifty percent deduction—only eighty percent of foreign taxes may be credited against U.S. taxes.[11] Tax theorists caution that a territorial tax system can encourage increased offshoring of funds without adequate measures to prevent base erosion.[12] An alternative tax policy model is worldwide taxation without deferral. Among major economies, only Brazil currently employs this model.[13] From the standpoint of capital ownership neutrality, the non-deferral model has drawbacks, potentially penalizing a country’s own companies in foreign markets.[14] However, such downsides would be negligible at best so long as the U.S. corporate tax rate stays relatively low, as with the twenty-one percent rate adopted in 2017.[15] Under the current IRS determination in IRC section 7701(a)(4) and (5), a corporation is considered foreign or domestic based on its incorporation, although this can be altered with a management and control test.[16] Tax enforcement is a critical facet of sovereignty in every country. Viewed through an economic lens, from the standpoint of revenue-gathering effectiveness, governments may benefit from somewhat random tax enforcement that can create a climate of moderate uncertainty encouraging more substantial payment and reporting.[17] Research in the 1980s suggests that higher marginal tax rates increase the incentive to evade taxes.[18] Indeed, reduced taxes lead to greater revenue received from taxes in some cases.[19] While the magnitude of potential evasion with base erosion is very significant, analysis of Greek tax data, as well as IRS data suggests that medium-sized domestic companies are among the most significant evaders, where simpler accounting standards and closely held status allows companies to employ workers “under the table,” or issue false invoices.[20] Data from the Greek case study may not be immediately applicable to other countries, but aspects of it are born out elsewhere in the academic literature. Income source is often determinative, with greater evasion among businesses that primarily receive cash.[21] In 1956, Solow articulated a widely cited theory of economic growth based on capital stock and labor, emphasizing that taxes may have little impact on long-term economic growth.[22] Research in the 1990s and early 2000s based off of Solow’s interpretation suggests that to optimize economic growth, a dollar of public spending should have five times the return of private investment to justify the rate of taxation needed to get that revenue.[23] The best tax systems have low enforcement costs, but compliance costs rise steeply when complexity increases. In the U.S. the complexity of the tax code, taken in combination with state and local taxations prompts nearly half of low-income individual filers to hire tax professionals, and even more higher income individual filers.[24] All of this generates the type of meaningless job creation that will later become a footnote in a Bureau of Labor Statistics report, but results in compliance costs of up to seven percent of revenue raised by federal and state taxes.[25] Corporations endure even greater complexity due to the multifaceted ways in which they conduct business—and that burden falls most on small and medium firms that have limited personnel to dedicate to compliance.[26] B. Offshore Finance, Tax Mitigation, and Tax Avoidance Many small island countries, and some small mainland countries in Europe, Asia, and Central America function as offshore financial centers and tax havens.[27] These small states compete with one another offering low or no taxes and traditionally refusing to exchange information with larger countries, both in the Organization for Economic Co-Operation and Development (OECD) and outside of it.[28] Many tax havens are self-governing British overseas territories, with common law familiar to U.S. and U.K. large corporations, such as the British Virgin Islands, Cayman Islands, or Gibraltar, while others such as Switzerland and Liechtenstein offer other types of law familiar in mainland Europe.[29] Offshore financial centers are essentially jurisdictions that offer financial services to non-residents.[30] But above all, these jurisdictions offer legal advantages like favorable tax rates or banking secrecy, for both legitimate and potentially illegitimate business activity.[31] Apart from the possibility of hiding money from taxation, some have dubbed offshore financial centers the “spiritual home of laundered drugs money.”[32] Traditionally, banking secrecy is the central element of offshore financial centers.[33] In addition to confidentiality, offshore financial centers commonly support other forms of financial activity, including carry trade and money market activities, or hedge funds.[34] U.S. banks are limited in how they can invest after the passage of Dodd-Frank, creating opportunities for banks in Singapore or Cyprus to invest more widely and offer higher returns. For instance, the Cayman Islands are famed for hedge funds. In fact, more than fifty percent of hedge funds worldwide were domiciled in the Cayman Islands in 2016 and the small island chain amounted to the world’s fifth largest financial center in terms of portfolio investments. Apart from U.S. sovereign debt held by the Chinese and Japanese central banks, funds in the Cayman Islands are the largest holders of U.S. securities and serve as a vital conduit to U.S. markets for Chinese and Japanese investors.[35] While it may be comparatively easy to drum up public opprobrium against offshore financial centers, the reality is that intermediate levels of tax offshoring and mitigation exist even in more mainstream national economies and legal systems. Base erosion and profit sharing is the primary means by which this quasi-legal international tax arbitrage takes place.[36] In 2013, corporate income tax contributed around ten percent of total tax revenues on average across the OECD.[37] After lows in the 1970s, corporate income tax contributions to overall government revenue increased throughout the OECD until declines at the time of the 2009 financial crisis.[38] Beginning with statutory tax reforms and changes to depreciation schedules in the U.S. and U.K. in the 1980s, most OECD members apart from Chile and Hungary actually reduced corporate tax rates by the end of 2000s.[39] Nevertheless, BEPS drew increased attention from policymakers as multiple studies found increased segregation between the location of business activity and the reporting of profits for tax purposes.[40] BEPS has come into being at a time of financial and economic globalization, throughout which global value chains have expanded along with the role of so-called “knowledge-based assets” like patents.[41] Even with somewhat reduced statutory rates, corporations have responded with varying forms of tax arbitration that often involve intellectual property.[42] Fearing a “race to the bottom,” many larger OECD economies have responded with measures intended to curb BEPS.[43] This has taken the form of anti-avoidance rules, taxing to domestic shareholders whether or not foreign revenue is repatriated to them, disallowing deduction of some interest expenses, anti-hybrid rules, and anti-base erosion rules that impose higher withholding tax.[44] C. Irish Taxation and the Rise and Fall of the “Double Irish” Over the long-term, countries play a large role in setting tax expectations. For instance, Sweden’s centralized state and high tax rates stretch back to the 17th century.[45] Ireland today is known as a hub for transfer pricing and financial offshoring, but this reputation is recent compared with the deep roots of the aforementioned Swedish tax traditions. At the time of the Irish Free State’s independence in 1922, the new government inherited a tax administration with staffing levels equivalent to those of the mid-18th century, and a population grudgingly accustomed to coercive, regressive taxes.[46] The government struggled to raise revenue throughout the early decades of independence. In the 1970s, this mission became even more important to keep up with rising government expenditures, and the government relied heavily on indirect taxes to avoid raising the ire of the island’s anti-tax population.[47] Efforts to avoid a return to the coercive taxes of the British era in practice meant that the tax burden fell on only a plurality of the population. In the mid-1970s, slightly over 800,000 Pay As You Earn income taxpayers shouldered ninety percent of the country’s income tax burden.[48] In a bid to boost to boost revenues, the 1980s witnessed computerization of tax collection, and a three-fold increase in the number of cases handled by the Revenue Commissioners.[49] But administrative challenges and public opposition endured.[50] Fianna Fáil, one of the country’s two largest political parties, attempted imposing a two-percent levy on farm produce in 1979, but was forced to back down after the Irish Farmers’ Associations led popular protests.[51] Perhaps revealing the weakness of the country’s Revenue Commissioners, after the failed implementation of a resource tax in 1980, the Irish government went so far as to reimburse taxpayers that had complied.[52] Faced with a government debt to GDP ratio double the European average, Fianna Fail led an initiative to create a voluntary tax amnesty. The 1980s proved to be a difficult time for the Irish economy.[53] Inflation reached eleven percent by 1986, the debt-to-GDP ratio reached 120 percent, and the country once again witnessed outmigration of its citizens.[54] Mirroring public sector cuts common across the globe, after 1987, Fianna Fail implemented strict public sector cuts during a “retrenchment” period.[55] Although politically unpopular, the measures managed to right the sinking ship of the country’s economy and Ireland began to prosper in the early 1990s thanks to information technology investment in its English-speaking workforce.[56] Ireland ultimately honed its foreign direct investment pitch—and its tax collection strategy--with the Taxes Consolidation Act of 1997, amended in 1999 to establish a 12.5 percent corporate tax rate.[57] As a result, for nearly twenty years, Ireland enjoyed a special status as a hub for American companies doing business in Europe. Clever tax solicitors soon developed various iterations of the “double Irish” structure. A U.S. company licenses its IP to an Irish subsidiary, which then licenses this IP to a second Irish company.[58] Through “check the box” rules, the second Irish subsidiary chooses to be treated as a passthrough entity, rather than a corporation, thus concealing its finances from the IRS.[59] The incomes of the subsidiaries can then be combined to determine whether sales by either company become Subpart F income.[60] Tax planners sometimes also adopted additional steps, such as setting up a third Dutch subsidiary, exchanging stock for cash under Section 368(a)(2)(B) of the Internal Revenue Code, having a subsidiary buy a newly acquired company from the parent, or using a newly acquired company turned subsidiary to borrow cash from a preexisting foreign subsidiary using Section 368(a)(2)(F).[61] In 2016, Ireland’s tax revenue as percentage of GDP was twenty-three percent below the OECD average.[62] On August 30, 2016, the European Commission ordered Ireland to pay $14.5 billion, as well as interest, in unpaid taxes from Apple Inc. for the tax period 2003 to 2014.[63] In 1991, with a renewal in 2007, Apple made an arrangement with the Irish Revenue Commissioners such that only €50 million of its €16 billion pretax profits in 2011 was taxable income in Ireland.[64] The EU considered this to be an illegal tax benefit, amounting to an effective tax rate of 0.05 percent—far below Ireland’s formal tax rate of 12.5 percent.[65] The 12.5 percent corporate tax rate proved highly attractive for large American multinational companies. Eight hundred American companies located operations in Ireland, including Microsoft, Apple, and Pfizer, the three of which collectively for somewhere between thirty and forty percent of all corporate taxes received, with ten companies comprising fifty-six percent of all corporate tax receipts.[66] Large players like Microsoft and Apple managed to achieve effective tax rates as low as 2.4 percent using the elaborate “Double Irish, Dutch sandwich” method, which the Irish government eventually scrapped in 2015 giving companies five years to comply.[67] To achieve ultra-low rates, American companies would incorporate a subsidiary in Ireland with a tax residence in Bermuda.[68] In an arm’s length transaction, the American company would transfer intellectual property rights to the subsidiary.[69] As a result, the subsidiary would be subject to Bermuda’s zero percent income tax, Ireland’s policy of non-taxation for an Irish corporation with foreign residence, and U.S. policy of not taxing foreign income.[70] The next step in the “Double Irish Walkthrough” involved the creation of a second Irish subsidiary and the licensing of intellectual property to that subsidiary from Bermuda to take advantages of Irish tax deductions for royalty income.[71] Some companies went a step further with the “Dutch Sandwich,” in which a Bermuda-based Irish subsidiary licensed intellectual property to a third subsidiary in the Netherlands.[72] Because of tax treaties between the Netherlands and Bermuda, this reduced the tax payments on royalties to almost nothing and allowed the second Irish subsidiary to take advantage of the 12.5 percent corporate tax rate.[73] Apple took its own approach, with the Virgin Islands substituted for Bermuda in the tax mitigation process.[74] By the mid-2010s, the E.U. grew increasingly frustrated with low effective rates in Ireland. The Irish government came under intense pressure from the E.U. to modify its tax rate and ultimately announced that it would do so by 2015.[75] However, in reality, Ireland retained its 12.5 percent rate until an announcement in October, 2021 that it would increase the rate to fifteen percent as part of the OECD fifteen percent minimum.[76] D. U.S. Taxation and the Rise of Overseas Enforcement The US famously taxes its citizens on worldwide income.[77] US citizens must file tax returns with the IRS for all income from both foreign and domestic sources, although individuals may be eligible for a foreign tax credit in some cases.[78] To handle double taxation issues with the nearly nine million Americans living abroad, the U.S. has brokered tax treaties with many other countries, agreeing to share information about taxpayers—but only upon request.[79] Similarly, the U.S. is a party to Tax Information Exchange Agreements (TIEAs) with other countries, typically those with whom it lacks a double taxation treaty.[80] Prior to 2008, TIEAs were primarily with offshore finance hubs like Guernsey, Antigua, the Netherlands, or Aruba.[81] Traditionally, most OECD member countries have engaged in territorial taxation, including France, Canada, Germany, and the Netherlands.[82] When the U.K. and Japan abandoned worldwide taxation in-favor of territorial taxation in 2009, the U.S. became among the minority in the OECD with its worldwide reach.[83] The U.S. is somewhat unusual because it offers a foreign tax credit, even if a foreign state does not reciprocate.[84] Bilateral tax treaties, in turn, have built on this system. If benefits offered through many tax treaties were implemented by statute, they would likely be itemized as part of tax expenditure budgets.[85] The rapid globalization of the 1980s, 1990s, and 2000s led to a rise in tax offshoring. However, laissez faire attitudes to tax enforcement came to an end in 2010 with the passage of the Foreign Account Tax Compliance Act (FATCA).[86] The IRS and Department of Justice launched a major crackdown on offshoring following the 2008 UBS whistleblower leaks.[87] In the immediate aftermath of the 2008-2009 financial crisis, the US and other countries began cracking down on their taxpayers, often extraterritorially. FATCA is not the only example of extraterritorial tax enforcement. In December, 2009, China issued Circular 698, extending tax authority over transactions between foreign entities outside of China that transfer interest into a domestic enterprise.[88] In some cases, measures designed to prevent offshoring can trigger free trade concerns. For instance, in 2012, Panama sought consultation with Argentina before the WTO Dispute Settlement Body (DSB), contending that Argentina’s defensive tax on low tax jurisdictions violated GATS non-discrimination principles.[89] In 2013, Argentina in Decree 589/2013 swapped from references to “jurisdictions with low or no taxes” to “jurisdictions not considered ‘cooperative for tax transparency purposes.”’[90] The Argentine Tax Authority would publish a list annually of countries it considered uncooperative for tax purposes, subjecting cross-border transactions to defense taxes.[91] Argentina adopted four defense measures, including withholding tax on payments of interest and remuneration, a presumption of unjustified increase in wealth, transaction valuations based on transfer prices, and a payment received rule for allocation of expenditures.[92] For its part, beginning in 2009, IRS implemented Offshore Voluntary Disclosure Programs. Citizens with offshore accounts reveal those accounts to avoid criminal prosecution.[93] In 2012, the US prosecuted three Wegelin Bank employees and the bank itself, forcing it to shut down business, signaling a willingness to crackdown on Swiss banks.[94] Swiss legislators ultimately adopted the details of the Swiss Bank Program into law by the end of August, 2013.[95] The program defined four categories of banks, with Category 2 including those not yet under prosecution but suspected of facilitating U.S. tax offenses.[96] In exchange for fines and non-prosecution, Category 2 banks handed over details on 35,000 U.S. accounts.[97] In response to FATCA, other countries turned to Intergovernmental Agreements and leaned more heavily on the OECD Common Reporting Standard.[98] There is a certain irony to the recent vigor of U.S. extraterritorial tax enforcement given the vibrant tax competition among the U.S. states, as sovereigns. For instance, in 1984, anticipating the growing significance of patents, copyrights, and trademarks, Delaware allowed income derived from intellectual property assets to avoid state corporate taxation.[99] Major corporations rushed to form wholly owned subsidiaries, dubbed Delaware Intellectual Property Holding Companies (DIPHC), which licenses that IP to parent or sibling companies in the other forty-nine states.[100] Delaware’s status as an onshore tax haven is rivaled in different ways by perpetual trusts, particularly South Dakota.[101] The South Dakota Legislature abolished the rule against perpetuities in 1983, three years before the 1986 GST tax.[102] Delaware followed suit in 1995, kicking off a race among states to allow for perpetual trusts.[103] Statutory choice of law provisions, and even the Uniform Trust Code itself, allowed the law of that particular state to govern trust administration.[104] II. IRISH RESPONSES The present efforts to standardize international tax rates are within the wheelhouse of sovereign states to undertake, but stem from a misplaced belief in the effectiveness of tax enforcement. The prominence of digital funds transfers, taken together with tax treaties and TIEAs would seem to make it much difficult for corporations to achieve tax arbitrage in their international operations. But as the old adage goes, when one door closes, another one opens. The fact that a large number of countries with many divergent policy interests have signed on to the OECD’s proposed tax rate suggests that the agreement may be viewed as largely symbolic, and thus could prove difficult to enforce. International agreements are famously difficult to enforce. That has long been true of environmental agreements that lack binding arbitration. Agreements around trade and foreign investment tend to be more readily enforceable because of the element of reciprocity, and in a sense tax policy is somewhat similar. OECD policymakers may choose to assent to the fifteen percent minimum rate because they fear the possibility of stark U.S. enforcement, desire ready access to U.S. markets and capital, or because they believe their own countries will need as much access to tax revenue as possible due to the debts incurred during the Covid-19 pandemic. There is little to stop countries that have joined the agreement from striking individual tax deals, or coming up with clever write-offs for research and development or cost of business activities. The risk with such a far-reaching global system, to the extent that it has any force is that it will force capital “underground,” to more far-flung tax havens on remote Pacific islands—or the metropolises of Nigeria and Pakistan—where opportunities for meaningful tax enforcement will be even fewer. It encourages nation-states to engage in more potentially corrupt tax deals with individual corporations, with potential anti-competitive effects globally and in home markets. Even if it did prove effective at garnering enhanced tax revenues, the inclination to shield capital from taxation never goes away. Corporations and wealthy individuals could rehouse capital into perpetual trusts, like those in South Dakota, or sink capital into different investments like cryptocurrencies or real estate. Particularly in the aftermath of the 2022 Russian invasion of Ukraine and the implementation of hard hitting sanctions against the Russian Federation, there is little reason for Russia to cooperate—although its strategic circumstances likely mean that much higher taxes may be in the offing for its citizens in the short-run. Irish policymakers are at the helm of a sovereign state, and could easily pull out of a tax agreement in the same way that Canada withdrew from the Kyoto Protocol, or many countries have withdrawn from the International Criminal Court’s jurisdiction. This might expose Ireland to heightened scrutiny and crackdowns by both the U.S. and the E.U., but careful accounting might suggest that these risks are merited with the economic impacts of tax changes. Proponents of the fifteen percent rate have argued that the increase is negligible, but would result in considerable tax gains for Ireland from corporate income, with little impact on Irish taxpayers. Projections for 2011 suggest that if a fifteen percent rate were in place at the time, Ireland would have realized an additional €700 million in revenue.[105] Now that Ireland has formally amended its corporate tax rate, the experiment will play out in the real world. If the fifteen percent rate proves viable, Ireland also has other options at its disposal. It could create specialized tax carveouts for patents and intellectual property, formally adhering to the fifteen percent rate while offering something much different. Similarly, it could offer generous depreciation schedules around technology and intellectual property that spur economic development in the country. Ireland could also amend its transfer pricing policies by revisiting tax treaties with the U.S. and U.K. Updates to both treaties could add more specific provisions for transfer pricing, and define a process for advance pricing agreements. In the event that a fifteen percent effective rate takes effect, Ireland could develop new aggressive depreciation schemes and enhance its research and development allowances to encourage foreign direct investment within Irish borders. A unique approach might allow enhanced data privacy and guarantees against government scrutiny to allow Irish banks and law firms to coordinate with remaining offshore finance hubs. This could be likened to the ways in which UBS has reshored many of its operations to Panama. If Irish policymakers choose to assiduously follow the fifteen percent corporate tax rate, the country could explore other means of supporting its tax base. One unusual option is already in effect in Portugal: onshoring foreign private capital through residency sales. Political instability in Russia, Turkey, Iran, and China is significant, and many well-off citizens fear expropriation of assets by corrupt government officials. Ireland could sell permanent resident status, with a buy in of a certain threshold of income taxes that must be paid each year. Ireland’s existing fame as an offshore financial hub, as well as its English speaking populace, and transparent common law legal system leave it well positioned to modify its tax policies and attract foreign investment, whether or not it adheres to a fifteen percent corporate tax rate. III. U.S. ENFORCEMENT STRATEGIES: TOWARD A GLOBAL FIFTEEN PERCENT MINIMUM? For now, the U.S. continues to charge ahead with the fifteen percent plan under President Biden’s leadership. But policy priorities can change quickly, even within one administration. Should the U.S. continue with this course of action, or adopt a different one? In American popular and academic media, there is a widespread conception that high net worth dodge taxes through aggressive plays, flaunting tax enforcement and that corporations do the same by even more sophisticated means. There may be truth to both suppositions, but tax evasion as Hollywood imagines it—with bags of cash on a private jet to the Cayman Islands—is likely much less common than careful planning of realized gains, depreciation, and transfer pricing. Indeed, the revelations of the Panama Papers and the Paradise Papers suggest it is high net worth individuals from Europe that take the greatest advantage of offshore finance because of the ability to “game” territorial tax systems. Speaking at a Senate hearing in 2011, Steptoe & Johnston partner, Philip West, urged policymakers to adopt a territorial system of taxation, contending that it would enhance American economic competitiveness.[106] Formally, the U.S. now has a partial territorial system since the 2017 Tax Cut & Jobs Act.[107] The big risk with the current U.S. worldwide system is that U.S. companies with foreign rivals that might be forced to undergo a foreign acquisition for tax reasons. For the foreseeable future, large American technology companies like Google, Apple, and Microsoft may be “sticky” enough to remain in the U.S. But other firms are harder to police, particularly large pharmaceutical companies partially based in France, Switzerland, or Ireland. The Mexican corporate giant Grupo Bimbo owns Sarah Lee and other famed U.S. brands, and seems to be able to succeed in its operations in-part because of Mexico’s territorial tax system. Whether in the example of pharmaceuticals or baked goods, aspects of transfer pricing apply, but an inversion does not necessarily take place. FATCA and the worldwide tax system raise enforcement costs for the federal government, making the IRS more like an intelligence agency than is its traditional purview. As a country that often promotes the values of sovereignty, FATCA is a glaring red flag that erodes territorial sovereignty. In a world where other large economies wield comparable power to the U.S., the precedent set by FATCA is an invitation for coercive extraterritorial enforcement by China that could easily produce harmful results both for American companies, and their European counterparts. The U.S. is likely ill prepared to grapple with meaningful foreign tax enforcement, leading to the possibility of uneven enforcement and uncertainty for multinational corporations—and most of all for individuals and small and medium businesses with overseas earnings. Therefore, even if Congress chooses to retain FATCA, it should carefully analyze tax policy more broadly and refine objectives for the IRS.[108] Even as the U.S. attempts to set corporate tax standards for the rest of the OECD, and many other large economies, it should borrow a page from other OECD members and adopt a territorial tax system, abandoning the cumbersome worldwide system once and for all. Dubbed by some the “participation exemption system,” a territorial system would return the focus to the limits of U.S. territory.[109] By 2016, ninety-one percent of non-U.S. OECD companies do business in territorial tax systems.[110] Therefore, the continued U.S. adherence to worldwide taxation places U.S. corporations at a disadvantage from the standpoint of compliance, compared to their peers throughout the rest of the OECD. To-date, U.S. tax authorities have taken “carrot and stick” approaches, both leaning into enforcement under FATCA after 2010, and offering multinational corporations “repatriation holidays,” to repatriate funds to the U.S. from overseas without penalties.[111] However, the repatriation process, when it has occurred, acts as little more than a temporary tax break, that has done little to dissuade American companies from clever foreign tax arbitrage.[112] A fifteen percent minimum rate in and of itself is still not enough to prevent foreign “tax plays,” because this threshold falls below the U.S. marginal effective corporate tax rate, particularly when state and local taxes are taken into account.[113] Rep. Dave Camp, a Congressman from Michigan, issued the “Camp Proposal” in 2014. In his variation of territorial taxation, the U.S. would exempt ninety-five percent of eligible foreign subsidiary dividends, keeping aspects of foreign tax credits for the five percent of foreign subsidiary dividends still subject to U.S. taxation.[114] Territorial taxation proponents argue that although some labor and manufacturing jobs could be offshored, this would be outweighed by gains in administration, finance, and legal activities in the U.S. overseeing that overseas activity.[115] In U.S. domestic taxation, accountants and tax advisors are accustomed to formulary apportionment in the context of state and local taxes.[116] Although no country has adopted this model for international taxation, some proponents have floated it in both the U.S. and E.U.[117] Critics argue that this particular model poses potential of abuse by clever tax planners allocating funds between different jurisdictions, and further add that the system might have high compliance costs.[118] A further option considered by tax policy thinkers is elimination of the deferral privilege.[119] The goal of this approach would be to limit the relevance of foreign tax “plays.”[120] Abandoning the deferral privilege would result in the foreign income of American corporations immediately becoming taxable in the U.S.[121] Corporations would likely still be eligible for a tax credit on taxes paid on foreign income, but would lose much of their ability to engage in transfer pricing abuse.[122] That is because, the U.S. corporations would face the same (comparatively high) effective tax rate on their income regardless where in the world they do business.[123] Because of the potential for high compliance costs with a formulary apportionment system, Congress should instead adopt territorial taxation modeled after the Camp Proposal, but incorporate careful economic analysis of the effects of foreign tax credits. Furthermore, Congress should repeal FATCA to limit extraterritorial overreach, but retain—and indeed expand—voluntary information sharing agreements with other countries. In a territorial taxation model, whether or not there is a fifteen percent minimum rate in-common across many peer economies, the U.S. will focus on where its tax enforcement can be most effective, and evenly applied. Furthermore, such a system will create an incentive for American corporations across industries to press for stable or reduced tax rates from Congress and the states. IV. CONCLUSION The U.S. should set aside its current effort to implement a fifteen percent minimum corporate tax rate. Because of the potential for high compliance costs with a formulary apportionment system, Congress should instead adopt territorial taxation modeled after the Camp Proposal, but incorporate careful economic analysis of the effects of foreign tax credits. Furthermore, Congress should repeal FATCA to limit extraterritorial overreach, but retain—and indeed expand—voluntary information sharing agreements with other countries. REFERENCES [1] Adam Hayes, Understanding Offshore, Investopedia, (May 6, 2021), https://www.investopedia.com/terms/o/offshore.asp. [2] See Carolyn Webber & Aaron Wildavsky, A History of Taxation and Expenditure in the Western World, 535 (1986). [3] Gisela Huerlimann, et al., Worlds of Taxation: The Political Economy of Taxing, Spending, and Redistribution Since 1945, 49-52 (2018). [4] Gisela Huerlimann, et al., Worlds of Taxation: The Political Economy of Taxing, Spending, and Redistribution Since 1945, 218-24 (2018). [5] Christopher H. Hanna, Tax Policy in a Nutshell 233 (2018). [6] Christopher H. Hanna, Tax Policy in a Nutshell 234 (2018). [7] Christopher H. Hanna, Tax Policy in a Nutshell 237 (2018). [8] Christopher H. Hanna, Tax Policy in a Nutshell 237 (2018). [9] Christopher H. Hanna, Tax Policy in a Nutshell 240 (2018). [10] Christopher H. Hanna, Tax Policy in a Nutshell 241 (2018). [11] Christopher H. Hanna, Tax Policy in a Nutshell 241 (2018). [12] Christopher H. Hanna, Tax Policy in a Nutshell 253 (2018). [13] Christopher H. Hanna, Tax Policy in a Nutshell 259 (2018). [14] Christopher H. Hanna, Tax Policy in a Nutshell 259 (2018). [15] Christopher H. Hanna, Tax Policy in a Nutshell 261 (2018). [16] Christopher H. Hanna, Tax Policy in a Nutshell 262 (2018) (citing Robert J. Peroni, and Stephen E. Shay, Defending Worldwide Taxation with a Shareholder-Based Definition of Corporate Residence, 2016 B.Y.U. L. Rev. 1681 (2017)). [17] Suzanne Scotchmer and Joel Slemrod, Randomness in Tax Enforcement, National Bureau of Economic Research Working Paper No. 2512, 2 (Feb. 1988). [18] Thomakos, Dimitrios D, and Konstantinos I Nikolopoulos. Taxation in Crisis: Tax Policy and the Quest for Economic Growth, 175-203 (2017). [19] Thomakos, Dimitrios D, and Konstantinos I Nikolopoulos. Taxation in Crisis: Tax Policy and the Quest for Economic Growth, 175-203 (2017). [20] Thomakos, Dimitrios D, and Konstantinos I Nikolopoulos. Taxation in Crisis: Tax Policy and the Quest for Economic Growth, 175-203 (2017) (explaining that Greece has an unusually high proportion of non-wage self-employed workers and farmers, hampering tax collection compared to many other European countries). [21] Susan Cleary Morse et al., Cash Businesses and Tax Evasion, 20 Stan. L. & Pol'y Rev. 37, 38-39 (2009). [22] Thomakos, Dimitrios D, and Konstantinos I Nikolopoulos. Taxation in Crisis: Tax Policy and the Quest for Economic Growth, 175-203 (2017). [23] Thomakos, Dimitrios D, and Konstantinos I Nikolopoulos. Taxation in Crisis: Tax Policy and the Quest for Economic Growth, 175-203 (2017). [24] Thomakos, Dimitrios D, and Konstantinos I Nikolopoulos. Taxation in Crisis: Tax Policy and the Quest for Economic Growth, 175-203 (2017). [25] Thomakos, Dimitrios D, and Konstantinos I Nikolopoulos. Taxation in Crisis: Tax Policy and the Quest for Economic Growth, 175-203 (2017). [26] Thomakos, Dimitrios D, and Konstantinos I Nikolopoulos. Taxation in Crisis: Tax Policy and the Quest for Economic Growth, 175-203 (2017). [27] Iris H-Y Chiu, From Multilateral to Unilateral Lines of Attack: The Sustainability of Offshore Tax Havens and Financial Centres in the International Legal Order, 31 Conn. J. Int'l L. 163, 165 (2016). [28] Iris H-Y Chiu, From Multilateral to Unilateral Lines of Attack: The Sustainability of Offshore Tax Havens and Financial Centres in the International Legal Order, 31 Conn. J. Int'l L. 163, 166 (2016). [29] Iris H-Y Chiu, From Multilateral to Unilateral Lines of Attack: The Sustainability of Offshore Tax Havens and Financial Centres in the International Legal Order, 31 Conn. J. Int'l L. 163, 166-67 (2016). [30] Mary Alice Young, Banking Secrecy and Offshore Financial Centers: Money Laundering and Offshore Banking, 35 (2012), see generally, Nigar Hashimzade & Yuliya Epifantseva, The Routledge Companion to Tax Avoidance Research, (2018). [31] Mary Alice Young, Banking Secrecy and Offshore Financial Centers: Money Laundering and Offshore Banking, 12 (2012). [32] Mary Alice Young, Banking Secrecy and Offshore Financial Centers: Money Laundering and Offshore Banking, 12 (2012). [33] Mary Alice Young, Banking Secrecy and Offshore Financial Centers: Money Laundering and Offshore Banking, 13 (2012). [34] See generally Tijn van Beurden & Joost Jonker, A perfect symbiosis: Curaçao, the Netherlands and financial offshore services, 1951–2013, 28 Financial History 67, 67-95 (2021). [35] Jan Fichtner, The Cayman conundrum: why is one tiny archipelago the largest financial centre in Latin America and the Caribbean?, London School of Economics, (Nov. 2, 2017), https://blogs.lse.ac.uk/latamcaribbean/2017/11/02/the-cayman-conundrum-why-is-one-tiny-archipelago-the-largest-financial-centre-in-latin-america-and-the-caribbean/. [36] Addressing Base Erosion and Profit Sharing, OECD, 15 (2013). [37] Addressing Base Erosion and Profit Sharing, OECD, 15 (2013). [38] Addressing Base Erosion and Profit Sharing, OECD, 15 (2013). [39] Addressing Base Erosion and Profit Sharing, OECD, 15 (2013). [40] Addressing Base Erosion and Profit Sharing, OECD, 20 (2013). [41] Addressing Base Erosion and Profit Sharing, OECD, 27 (2013). [42] Addressing Base Erosion and Profit Sharing, OECD, 74 (2013). [43] Addressing Base Erosion and Profit Sharing, OECD, 38 (2013). [44] Addressing Base Erosion and Profit Sharing, OECD, 38 (2013). [45] Douglas Kanter & Patrick Walsh, Taxation, Politics, and Protest in Ireland: 1662-2016, 331-355 (2019). [46] Douglas Kanter & Patrick Walsh, Taxation, Politics, and Protest in Ireland: 1662-2016, 331-355 (2019). [47] Douglas Kanter & Patrick Walsh, Taxation, Politics, and Protest in Ireland: 1662-2016, 331-355 (2019). [48] Douglas Kanter & Patrick Walsh, Taxation, Politics, and Protest in Ireland: 1662-2016, 331-355 (2019) (at the time of its accession to the European Economic Community, in 1973, the country also introduced a value-added tax (VAT) as a way to boot revenues). [49] Douglas Kanter & Patrick Walsh, Taxation, Politics, and Protest in Ireland: 1662-2016, 331-355 (2019). [50] Douglas Kanter & Patrick Walsh, Taxation, Politics, and Protest in Ireland: 1662-2016, 331-355 (2019). [51] Douglas Kanter & Patrick Walsh, Taxation, Politics, and Protest in Ireland: 1662-2016, 331-355 (2019). [52] Douglas Kanter & Patrick Walsh, Taxation, Politics, and Protest in Ireland: 1662-2016, 331-355 (2019). [53] Andrew P. Kummer, Pro-Business But Anti-Economy?: Why Ireland’s Staunch Protection of Its Corporate Tax Regime is Preventing a Celtic Phoenix from Rising from the Ashes of the Celtic Tiger, 9 Brook. J. Corp. Fin. & Com. L. 284, 289 (2014). [54] Andrew P. Kummer, Pro-Business But Anti-Economy?: Why Ireland’s Staunch Protection of Its Corporate Tax Regime is Preventing a Celtic Phoenix from Rising from the Ashes of the Celtic Tiger, 9 Brook. J. Corp. Fin. & Com. L. 284, 289 (2014). [55] Andrew P. Kummer, Pro-Business But Anti-Economy?: Why Ireland’s Staunch Protection of Its Corporate Tax Regime is Preventing a Celtic Phoenix from Rising from the Ashes of the Celtic Tiger, 9 Brook. J. Corp. Fin. & Com. L. 284, 290 (2014). [56] Andrew P. Kummer, Pro-Business But Anti-Economy?: Why Ireland’s Staunch Protection of Its Corporate Tax Regime is Preventing a Celtic Phoenix from Rising from the Ashes of the Celtic Tiger, 9 Brook. J. Corp. Fin. & Com. L. 284, 296-97 (2014). [57] Andrew P. Kummer, Pro-Business But Anti-Economy?: Why Ireland’s Staunch Protection of Its Corporate Tax Regime is Preventing a Celtic Phoenix from Rising from the Ashes of the Celtic Tiger, 9 Brook. J. Corp. Fin. & Com. L. 284, 297 (2014) (citing Taxes Consolidation Act 1997 (Act No. 39/1997) (Ir.), available at http://www.irishstatutebook.ie/1997/en/act/pub/0039/index.html and Finance Act 1999 (Act No. 2/1999) (Ir.), available at http:// www.irishstatutebook.ie/1999/en/act/pub/0002/sec007l.html#sec71. Kummer notes that Ireland previously had a ten percent tax rate for manufacturing activities); see also Lisa O’Carroll, Will Ireland’s corporation tax rise see tech companies leave Dublin?, The Guardian, (Oct. 23, 2021), https://www.theguardian.com/world/2021/oct/23/will-irelands-corporation-tax-rise-see-tech-companies-leave-dublin#:~:text=Earlier%20this%20month%20Ireland%20signed%20up%20to%20landmark%20reforms%20for,system%20in%20almost%2020%20years (explaining that the ten percent rate dates to the 1960s and initially lured companies like Pfizer to Ireland in the early 1970s). [58] Boyu Wang, After the European Commission Ordered Apple to Pay Back Taxes to Ireland: Ireland’s Future in the New Global Tax Environment, 25 Ind. J. Global Legal Stud. 539, 547 (2018). [59]Stephen C. Loomis, The Double Irish Sandwich: Reforming Overseas Tax Havens, 43 St. Mary's L.J. 825, 838 (2011). [60] Stephen C. Loomis, The Double Irish Sandwich: Reforming Overseas Tax Havens, 43 St. Mary's L.J. 825, 838-39 (2011). [61] Stephen C. Loomis, The Double Irish Sandwich: Reforming Overseas Tax Havens, 43 St. Mary's L.J. 825, 841-42 (2011). [62] Douglas Kanter & Patrick Walsh, Taxation, Politics, and Protest in Ireland: 1662-2016, 331-355 (2019). [63] Boyu Wang, After the European Commission Ordered Apple to Pay Back Taxes to Ireland: Ireland’s Future in the New Global Tax Environment, 25 Ind. J. Global Legal Stud. 539, 540 (2018). [64] Boyu Wang, After the European Commission Ordered Apple to Pay Back Taxes to Ireland: Ireland’s Future in the New Global Tax Environment, 25 Ind. J. Global Legal Stud. 539, 540 (2018). [65] Boyu Wang, After the European Commission Ordered Apple to Pay Back Taxes to Ireland: Ireland’s Future in the New Global Tax Environment, 25 Ind. J. Global Legal Stud. 539, 540 (2018). [66] Lisa O’Carroll, Will Ireland’s corporation tax rise see tech companies leave Dublin?, The Guardian, (Oct. 23, 2021), https://www.theguardian.com/world/2021/oct/23/will-irelands-corporation-tax-rise-see-tech-companies-leave-dublin#:~:text=Earlier%20this%20month%20Ireland%20signed%20up%20to%20landmark%20reforms%20for,system%20in%20almost%2020%20years.. [67] Lisa O’Carroll, Will Ireland’s corporation tax rise see tech companies leave Dublin?, The Guardian, (Oct. 23, 2021), https://www.theguardian.com/world/2021/oct/23/will-irelands-corporation-tax-rise-see-tech-companies-leave-dublin#:~:text=Earlier%20this%20month%20Ireland%20signed%20up%20to%20landmark%20reforms%20for,system%20in%20almost%2020%20years.. [68] Andrew P. Kummer, Pro-Business But Anti-Economy?: Why Ireland’s Staunch Protection of Its Corporate Tax Regime is Preventing a Celtic Phoenix from Rising from the Ashes of the Celtic Tiger, 9 Brook. J. Corp. Fin. & Com. L. 284, 300 (2014). [69] Andrew P. Kummer, Pro-Business But Anti-Economy?: Why Ireland’s Staunch Protection of Its Corporate Tax Regime is Preventing a Celtic Phoenix from Rising from the Ashes of the Celtic Tiger, 9 Brook. J. Corp. Fin. & Com. L. 284, 301 (2014). [70] Andrew P. Kummer, Pro-Business But Anti-Economy?: Why Ireland’s Staunch Protection of Its Corporate Tax Regime is Preventing a Celtic Phoenix from Rising from the Ashes of the Celtic Tiger, 9 Brook. J. Corp. Fin. & Com. L. 284, 301 (2014). [71] Andrew P. Kummer, Pro-Business But Anti-Economy?: Why Ireland’s Staunch Protection of Its Corporate Tax Regime is Preventing a Celtic Phoenix from Rising from the Ashes of the Celtic Tiger, 9 Brook. J. Corp. Fin. & Com. L. 284, 301 (2014). [72] Andrew P. Kummer, Pro-Business But Anti-Economy?: Why Ireland’s Staunch Protection of Its Corporate Tax Regime is Preventing a Celtic Phoenix from Rising from the Ashes of the Celtic Tiger, 9 Brook. J. Corp. Fin. & Com. L. 284, 301 (2014). [73] Andrew P. Kummer, Pro-Business But Anti-Economy?: Why Ireland’s Staunch Protection of Its Corporate Tax Regime is Preventing a Celtic Phoenix from Rising from the Ashes of the Celtic Tiger, 9 Brook. J. Corp. Fin. & Com. L. 284, 301 (2014). [74] Andrew P. Kummer, Pro-Business But Anti-Economy?: Why Ireland’s Staunch Protection of Its Corporate Tax Regime is Preventing a Celtic Phoenix from Rising from the Ashes of the Celtic Tiger, 9 Brook. J. Corp. Fin. & Com. L. 284, 302 (2014). [75] Andrew P. Kummer, Pro-Business But Anti-Economy?: Why Ireland’s Staunch Protection of Its Corporate Tax Regime is Preventing a Celtic Phoenix from Rising from the Ashes of the Celtic Tiger, 9 Brook. J. Corp. Fin. & Com. L. 284, 299 (2014). [76] Lisa O’Carroll, Will Ireland’s corporation tax rise see tech companies leave Dublin?, The Guardian, (Oct. 23, 2021), https://www.theguardian.com/world/2021/oct/23/will-irelands-corporation-tax-rise-see-tech-companies-leave-dublin#:~:text=Earlier%20this%20month%20Ireland%20signed%20up%20to%20landmark%20reforms%20for,system%20in%20almost%2020%20years. [77] Shu-Yi Oei, The Offshore Tax Enforcement Dragnet, 67 Emory L.J. 655, 664 (2018). [78] Shu-Yi Oei, The Offshore Tax Enforcement Dragnet, 67 Emory L.J. 655, 664 (2018) (citing I.R.C. § 61 (2012); Cook v. Tait, 265 U.S. 47, 56 (1924); I.R.C. § 911. [79] Shu-Yi Oei, The Offshore Tax Enforcement Dragnet, 67 Emory L.J. 655, 664 (2018). [80] Shu-Yi Oei, The Offshore Tax Enforcement Dragnet, 67 Emory L.J. 655, 669-70 (2018). [81] Shu-Yi Oei, The Offshore Tax Enforcement Dragnet, 67 Emory L.J. 655, 669-70 (2018). [82] Jessica L. Oldani, Rehabilitating the U.S. Corporate Income Tax System in Light of Current Realities and 26 U.S.C. § 965, 46 Int'l Law. 709, 713 (2012). [83] Jessica L. Oldani, Rehabilitating the U.S. Corporate Income Tax System in Light of Current Realities and 26 U.S.C. § 965, 46 Int'l Law. 709, 712 (2012). [84] Steven A. Dean, Beyond the “Made in America Tax Plan”: GILTI and International Tax Cooperation’s Next Golden Age, 18 Pitt. Tax Rev. 341, 344 (2021) (citing I.R.C. § 164(a)(3)). [85] Steven A. Dean, Beyond the “Made in America Tax Plan”: GILTI and International Tax Cooperation’s Next Golden Age, 18 Pitt. Tax Rev. 341, 347 (2021) (citing Steven A. Dean, The Tax Expenditure Budget Is a Zombie Accountant, 46 U.C. Davis L. Rev. 265, 289 (2012)). [86] Steven A. Dean, Beyond the “Made in America Tax Plan”: GILTI and International Tax Cooperation’s Next Golden Age, 18 Pitt. Tax Rev. 341, 347 (2021) (citing Lawrence Zelenak, The Great American Tax Novel, 110 Mich. L. Rev. 969, 981 (2012), discussing an IRS enforcement measure of requiring Social Security numbers to file in 1987 that reduced the number of children on tax returns by seven million). [87] Shu-Yi Oei, The Offshore Tax Enforcement Dragnet, 67 Emory L.J. 655, 674 (2018). [88] Wei Shen & Casey Watters, Is China Creating a New Business Order? Rationalizing China’s Extraterritorial Attempt to Expand the Veil-Piercing Doctrine, 35 Nw. J. Int'l L. & Bus. 469, 473 (2015). [89] Monica Victor, On the Fragility of the International Taxation Legal System, 22 Fla. Tax Rev. 789, 796-97 (2019) (citing Appellate Body Report, Argentina-Measures Relating to Trade in Goods and Services, WTO Doc. WT/DS453/AB/R/ (adopted May 9, 2016)). [90] Monica Victor, On the Fragility of the International Taxation Legal System, 22 Fla. Tax Rev. 789, 797 (2019). [91] Monica Victor, On the Fragility of the International Taxation Legal System, 22 Fla. Tax Rev. 789, 797 (2019) [92] Monica Victor, On the Fragility of the International Taxation Legal System, 22 Fla. Tax Rev. 789, 798-99 (2019) [93] Shu-Yi Oei, The Offshore Tax Enforcement Dragnet, 67 Emory L.J. 655, 676 (2018). [94] Shu-Yi Oei, The Offshore Tax Enforcement Dragnet, 67 Emory L.J. 655, 680 (2018). [95] Shu-Yi Oei, The Offshore Tax Enforcement Dragnet, 67 Emory L.J. 655, 680 (2018). [96] Shu-Yi Oei, The Offshore Tax Enforcement Dragnet, 67 Emory L.J. 655, 681 (2018). [97] Shu-Yi Oei, The Offshore Tax Enforcement Dragnet, 67 Emory L.J. 655, 680 (2018). [98] Steven A. Dean, Beyond the “Made in America Tax Plan”: GILTI and International Tax Cooperation’s Next Golden Age, 18 Pitt. Tax Rev. 341, 347 (2021). [99] Xuan-Thao Nguyen, Promoting Corporate Irresponsibility? Delaware as the Intellectual Property Holding State, 46 J. Corp. L. 717, 733-34 (2021) (citing Del. Code Ann. tit. 30, § 1902(b)(8) (2006)). [100] Xuan-Thao Nguyen, Promoting Corporate Irresponsibility? Delaware as the Intellectual Property Holding State, 46 J. Corp. L. 717, 733-34 (2021). [101] Steven J. Horowitz & Robert H. Sitkoff, Unconstitutional Perpetual Trusts, 67 Vand. L. Rev. 1769, 1784 (2014). [102] Steven J. Horowitz & Robert H. Sitkoff, Unconstitutional Perpetual Trusts, 67 Vand. L. Rev. 1769, 1784 (2014). [103] Steven J. Horowitz & Robert H. Sitkoff, Unconstitutional Perpetual Trusts, 67 Vand. L. Rev. 1769, 1785 (2014). [104] Steven J. Horowitz & Robert H. Sitkoff, Unconstitutional Perpetual Trusts, 67 Vand. L. Rev. 1769, 1785 (2014); Thomas H. Foye, Using South Dakota Law for Perpetual Trusts, 12-JAN Prob. & Prop. 17 (1998) (explaining that if a trust is moved from a state like Hawaii or Oregon, with taxation determined by trustee residence to South Dakota, with no trustees residing in the former state, the trust will probably no longer be subject to state income tax, except where beneficiaries live in a state that uses a trust's residency for income tax purposes on the beneficiaries' residency in that state). [105] Andrew P. Kummer, Pro-Business But Anti-Economy?: Why Ireland’s Staunch Protection of Its Corporate Tax Regime is Preventing a Celtic Phoenix from Rising from the Ashes of the Celtic Tiger, 9 Brook. J. Corp. Fin. & Com. L. 284, 307-308 (2014). [106] Remy Farag, Witnesses clash on whether U.S. should adopt territorial system of tax at Senate panel, 2011 WL 13243501 (RIANWS). [107] Christopher H. Hanna, Tax Policy in a Nutshell 240 (2018). [108] Discussion of both corporate tax rate and a comparison of a territorial versus a worldwide system tends to raise the question of whether a VAT tax would be a fairer mechanism of taxation. The U.S. is unusual for the degree to which it relies on income tax to finance governmental operations. Sales tax functions as a quasi-VAT tax within the U.S., but does not generate as much revenue as a VAT. Defenders of income tax argue that it is less likely to be regressive because income tax arguably taxes benefit people receive. An alternative argument calls for consumption tax as a clearer example of what is derived from society. Income tax has the potential to discourage savings. VAT is insufficient to tax the full scope of consumption, because it does not as easily apply to services. [109] Michael J. Veneri Jr., Deep Dive, Chicago Style: A Roadmap for Understanding International Tax Reform, 5 Global Bus. L. Rev. 81, 105 (2016). [110] Michael J. Veneri Jr., Deep Dive, Chicago Style: A Roadmap for Understanding International Tax Reform, 5 Global Bus. L. Rev. 81, 105 (2016). [111] Michael J. Veneri Jr., Deep Dive, Chicago Style: A Roadmap for Understanding International Tax Reform, 5 Global Bus. L. Rev. 81, 114 (2016). [112] Michael J. Veneri Jr., Deep Dive, Chicago Style: A Roadmap for Understanding International Tax Reform, 5 Global Bus. L. Rev. 81, 114 (2016). [113] U.S. states and even localities have a modest differential in tax rates—ranging as high as 10 percent between states like Delaware and California. Florida and Texas appeal to high net worth individuals—and earners in all brackets—with zero personal income tax, but still charge corporate tax rates. New York is among the few states that aggressively enforces state taxes, but most others lack the enforcement budgets to carry out enforcement to the extent of the federal government. Formally, there is only one way to avoid paying U.S. income tax: locating in Puerto Rico or one of the other territories. However, this type of federal tax reduction is rarely undertaken except by individuals, likely because of more limited workforces. [114] Michael J. Veneri Jr., Deep Dive, Chicago Style: A Roadmap for Understanding International Tax Reform, 5 Global Bus. L. Rev. 81, 105-106 (2016). [115] Michael J. Veneri Jr., Deep Dive, Chicago Style: A Roadmap for Understanding International Tax Reform, 5 Global Bus. L. Rev. 81, 107 (2016). [116] Michael J. Veneri Jr., Deep Dive, Chicago Style: A Roadmap for Understanding International Tax Reform, 5 Global Bus. L. Rev. 81, 109 (2016). [117] Michael J. Veneri Jr., Deep Dive, Chicago Style: A Roadmap for Understanding International Tax Reform, 5 Global Bus. L. Rev. 81, 109 (2016). [118] Michael J. Veneri Jr., Deep Dive, Chicago Style: A Roadmap for Understanding International Tax Reform, 5 Global Bus. L. Rev. 81, 109 (2016). [119] Michael J. Veneri Jr., Deep Dive, Chicago Style: A Roadmap for Understanding International Tax Reform, 5 Global Bus. L. Rev. 81, 113 (2016). [120] Michael J. Veneri Jr., Deep Dive, Chicago Style: A Roadmap for Understanding International Tax Reform, 5 Global Bus. L. Rev. 81, 113 (2016). [121] Michael J. Veneri Jr., Deep Dive, Chicago Style: A Roadmap for Understanding International Tax Reform, 5 Global Bus. L. Rev. 81, 114 (2016). [122] Michael J. Veneri Jr., Deep Dive, Chicago Style: A Roadmap for Understanding International Tax Reform, 5 Global Bus. L. Rev. 81, 114 (2016). [123] Michael J. Veneri Jr., Deep Dive, Chicago Style: A Roadmap for Understanding International Tax Reform, 5 Global Bus. L. Rev. 81, 114 (2016).

Originally published July 19, 2022 Preceding the war in Ukraine, Russia was typically evaluated as one of the most formidable military powers in the world. Global Firepower ranks Russia only slightly behind the US in capabilities and ahead of China, in the number two position worldwide. After three months of war in Ukraine in the largest conventional war in Europe since World War II, what have we learned about the state of the Russian military and what does it means for security in Europe and around the world? Executive Summary The Russian Federation has undertaken a massive military operation in Ukraine—the largest conventional war in Europe since World War II. Marking an end to soft power negotiation about the breakaway Donetsk republics, the campaign seems intended to weaken Ukraine’s military and prevent Ukraine from moving closer to NATO and the EU. So far, the war has resulted in renewed commitments to defense spending throughout NATO and a mobilization of weapons and sanctions against Russia. Compared with wargames and planning scenarios, Russia used far less of its air power than expected. It has also lost many troops in Ukraine, along with millions of dollars worth of armored vehicles and aircraft. In a startling development in mid-April, it even lost its Black Sea flagship, the guided-missile cruiser Moskva to an apparent Ukrainian anti-ship missile attack. Russia also appears to have lost multiple senior officers to Ukrainian snipers and strikes. For defense leaders, procurement professionals, and defense contractors, the conflict offers many preliminary takeaways: For political leaders, the war also offers valuable insights: Take measures to prevent conflict escalation in the Korean peninsula and between Armenia and Azerbaijan Work to resolve frozen conflicts and stabilize or clarify the position of Georgia and Moldova Defuse potential ethnic conflicts in Eastern Europe with an emphasis on the Baltic states and Bosnia-Herzegovina How is the War in Ukraine Proceeding? For now, the picture remains unclear about the extent of Russian combat losses, and the political and economic fallout of the war at home. Marine Corps University carried out a four-day wargame of a Russian invasion two weeks before the actual invasion began.[1] The wargame closely aligned with Russian opening moves, but did not anticipate subsequent Russian combat operations. Players anticipated that Russia would strike swiftly to destroy Ukraine’s air force with Kalibr and Kh-101 cruise missile strikes. In the real world, Russia did attempt to strike Ukrainian S-300 anti-aircraft systems, but failed to eliminate Ukraine’s air force or scattered Buk SA-17 launchers. The wargame did correctly anticipate that Russia would attempt to encircle Kyiv and make its most dramatic progress on the ground, advancing from Crimea. The authors of an article profiling the wargame wrote: During the wargame, there was a lot of discussion about the employment of information weapons, including cyber. It is therefore noteworthy that aside from Anonymous’ declaring cyber war on Russia, there is very little public reporting of actual cyberattacks by either side. Prior to the conflict one of the West’s great concerns was Russia’s much-vaunted cyber capabilities. So, either the Russians are holding a number of zero-day exploits in reserve, or it is time to closely examine how dangerous cyber operations truly are. Moreover, for all the heated talk about hybrid and grey zone warfare, this is a fight of blood and iron, in which Otto von Bismarck would have felt at home, something wargames are spectacularly good at simulating. Other events in the wargame that have yet to come to pass in the real world include a Ukrainian incursion into Belarus or a pitched tank battle to break Russian lines near Kharkiv. Since April, Russia removed its forces in northern Ukraine and launched major offensives in the east. Although Kharkiv and Mykolaiv remain out of Russia’s grasp, the final removal of Ukrainian troops from Mariupol in mid-May has—for now—clinched Russian control of the entire coastline of the Sea of Azov. Protracted fighting throughout June has occurred along the lengthy eastern front in the Donbas, with Russian forces gaining full control of Sevierodonetsk in recent days. Russia has consolidated its positions in the vicinity of Kherson and is preparing its assault on Lysychansk, the last remaining Ukrainian held city in the Luhansk Oblast. Areas of Weakness for the Russian Military Command and control and logistics are two of the Russian military’s greatest strategic weaknesses. Throughout much of Russian and Soviet history, decision making was highly centralized to Moscow. Commentators in the current war have made much of the death of five Russian generals in Ukraine, as a sign of weak morale among Russian troops. This evaluation may be correct. There is a certain moral value to “leading from the front” but losing senior commanders also sets back any fighting force, forcing successors to become familiarized with their new command as fast as possible. Russian military logistics appears more reliant on rail transportation than the American armed forces, which rely much more on truck transport.[1] In the context of Ukraine, this has slowed the advance into Ukraine and makes redeployment challenging. Going back to the early 1980s, the US has relied heavily on systems like the M1 Abrams that lack long-range diesel capabilities. Russia’s armored units have a considerable range with diesel, but the length of the deployment in Ukraine has still strained fuel supplies. Weighed against peer militaries like the US, China, and India, or many of the major European militaries, the Russian military is nearly as experienced as the US military, with recent combat experiences in Syria, Georgia, and Chechnya. Syria and Georgia in particular offered a dry run for the kind of expeditionary capabilities on display in Ukraine. Nevertheless, Russia’s engagements have tended to be smaller in scale and closer to home than those of the US and UK, with extended engagements in Afghanistan and Iraq. Although it is now 19 years since the US attempted an operation on the scale of the Russian invasion of Ukraine, when it invaded Iraq, the continued engagements up to the 2021 Afghanistan withdrawal provided large amounts of experience in managing complex logistics. Compared with its NATO opponents, Russia also lags in some naval and aviation capabilities. Even with improved Borei-class submarines, it lacks the massive combined fleets—with large numbers of aircraft carriers and amphibious warfare ships—that the US, UK, France, and even smaller powers like Italy and Spain can put to sea. Similarly, Russian aircraft are highly capable if slightly less numerous than the combined totals of NATO nations. The US is well known for the high costs of its military and the seemingly gold plated payouts awarded to defense contractors. Russia’s military—like the country as a whole—suffers from the effects of corruption.[2] Data is lacking about the extent of corruption in the old Soviet military. However, Russian auditing in the 1990s and early 2000s suggests corruption totaled $11.5 billion US.[3] Corruption in the early 21st century took the form of (1) diverting funds for arms procurement, (2) exaggerating troop numbers, and (3) overpaying civilian contractors for goods and services.[4] Russian forces in the 1990s routinely sold fuel to private citizens—or even more dramatically sound weapons to the Chechen resistance. Areas of Strength for the Russian Military Although Russia’s current population is more than 100 million people fewer than at the peak population of the Soviet Union, it is much cohesive around an ethnically and linguistically Russian national identity. Apart from a few areas like Ukraine that slipped away from Moscow’s control, most of the former Soviet Union is still closely bound to the Kremlin. Hundreds of thousands of Central Asians work in Russia[5] and both Belarus and the Central Asian states depend on Russia for trade and security guarantees. Western commentators commonly remark that Russia’s economy is smaller than that of Canada. On paper, that is certainly true, but it fails to capture key facts about Russia. Much of the GDP—by some accounts over half—in many Western countries is financial instruments. These are doubtless “real” economic activity, but when the chips are down, Russia punches far above its weight in industrial capacity, energy, and agricultural output. Russia possesses some of the largest stockpiles of tanks and artillery in the world. It has the world’s largest inventory of nuclear weapons, and unlike the US, UK, and France, has continued to innovate with new weapons like Topol missiles and ultra-long range Sarmat-2s.[6] Russia possesses the world’s most sophisticated air defense system[7], even if the raw number of aircraft that it fields is somewhat less than the US and its allies. Together with deep domestic reserves, Russia has a largely friendly neighborhood. Kazakhstan, Armenia, Turkmenistan, and Tajikistan all possess capable militaries aligned with Russia through the CSTO, and the populace of many former Soviet countries—like Kyrgyzstan—speaks Russian. Unlike in the 1970s and 1980s when China and the Soviet Union were at loggerheads following the Sino-Soviet split, Russia does not need to worry much about a conflict with China in the short run, particularly as Russia becomes China’s supplier for gas, grain—and nuclear protection. Above all, Russia is willing to sacrifice its service members in ways that are politically untenable for Western countries. Similarities and Differences with the Cold War The centrality of nuclear weapons in the Cold War is hard to ignore. The omnipresent threat of global thermonuclear war hung over all public policy and defined the US-Soviet relationship. Both sides prepared for massive conventional wars. This took the form of US anticipation of a new Battle of the Atlantic as it raced to resupply Western Europe with tanks, troops, food, and fuel. For its part, the Soviet Union and its Warsaw Pact allies rehearsed massive land invasions of Western, Northern, and Southern Europe. In Central Europe, NATO planned to counter the Soviet “Seven Days to the Rhine” plan with massive tank battles on the North German Plain and in the Fulda Gap, and the use of tactical nuclear weapons.[8] Every country in Western Europe retained large (and often conscript) militaries into the mid-1990s. Both sides anticipated that the other would rapidly escalate to nuclear war. Nonetheless, scenarios did not typically explain why such a war had broken out. Massive confrontations loomed several times: the building of the Berlin Wall in 1961, the 1962 Cuban Missile crisis, the invasion of Czechoslovakia in 1968, the 1973 Yom Kippur War, and misunderstandings about the Able Archer Exercise in 1983.[9] Reflecting on the Cold War legacy, it seems likely that a large scale land war cum nuclear war might have broken out simply in an effort to preempt a perceived attack by the other side. Although it bears some resemblance to old Soviet “deep battle” plans in Central Europe or Turkey and Iran, the ongoing war in Ukraine is different from the Cold War in key ways. This is the biggest test of the reformed, updated, and strengthened Russian military, with the investment of the 2010s and—supposedly—the lessons learned from Chechnya, Georgia, Syria, and the War in Donbas. The Russian military struck with forces larger than any seen in operation in Europe in the past 75 years (surpassing the invasion of Czechoslovakia in 1968 and the Yugoslav wars in the 1990s), but still far fewer than the Gulf War Coalition fielded in 1991. It seems likely that both sides in the conflict have committed war crimes. Certainly the Russian decision to obliterate Mariupol with artillery, or reported massacres in Bucha[10], are deeply unfortunate outcomes to the war. Nonetheless, Russia has shown remarkable restraint compared to its use of force against its own citizens in Chechnya. Russian strikes have hardly touched central Kiev, Russian forces seem to have used comparatively little repression against citizens in occupied areas although crackdowns have certainly occurred, and Russia has made extensive use of guided missiles to strike strategic targets. Above all, Russia has not extensively deployed thermobaric bombs on the battlefield—or made other use of weapons of mass destruction. How the war resolves will determine much of how Russia adapts its armed forces going forward. As a more open country than the old Soviet Union, Russia may discover that it needs to consider morale more than it once did as word about the war filters in the from the outside world and casualties mount. Perhaps it will return to old plans for deep battle on a smaller front, drawing yellowed pages from still secret archives in Moscow. Or Russia may revert to tried and true strategies like espionage and subterfuge. Western countries benefit from open societies, but have plenty of ethnic, religious, racial, and ideological groups with potential grievances. With these concerns in-mind, it is imperative for Western governments to avoid hamhanded crackdowns on their own far-left, far-right, immigrant, and minority communities. These imperatives are especially important in context of the Russian-speaking community in the Baltic countries. Additionally, given the explosive potential of the Balkans, Western governments need to get out ahead of the brewing nationalist sentiments in Bosnia-Herzegovina. Compared with the last 20 years of the Cold War, Russia is at liberty to concentrate its forces on Europe. Belarus, Iran, Turkey, Kazakhstan, and China are all “friendly” countries. This means that the potential flashpoints for conflict are different than they once were. Instead of the Yalu River, West Berlin, or central Germany, today’s strategic planners should look to the Russian enclave of Kaliningrad.[11] To avoid provocation, the region must be given ready access to food and fuel. In the Caucasus, Georgia’s situation remains unresolved and new strategic plans may need to be considered to ensure Georgia’s sovereignty without provoking a Russian intervention there. Apart from the Gulf States, Azerbaijan and Armenia are two of the most heavily militarized countries. A short but bloody war in 2020 reignited the smoldering Nagorno-Karabakh conflict of the 1990s. Armenia and Azerbaijan both buy weaponry from Russia, although Azerbaijan has independent cultural alignments with both Iran and Turkey. If this conflict reignites, the complex strategic relations in the region may entangle Western countries in ways that are difficult to anticipate. Responding to Russia Today Russia has undertaken a complex military endeavor even more ambitious than the US invasion of Iraq in 2003, and with only modestly more forces. Its campaign in northeastern Ukraine quickly bogged down around Kharkiv and forestalled a rapid victory, leaving Russian forces active but somewhat disorganized throughout parts of the country. History suggests that Russian military doctrine will not change quickly and Russia has already lost valuable equipment in Ukraine. Nevertheless, Russia may adapt to circumstances and attempt to implement more flexible forces like its Western opponents—a pattern that some analysts already see happening. Western policymakers, military leaders, and defense contractors must all evaluate countermeasures to safeguard vulnerable geographies. Moldova has rapidly moved to align itself with the EU and NATO. Georgia will likely remain paralyzed by its twin breakaway regions. Serbia has the potential to become a valuable partner in future European defense procurement. Aligned both with Russia and the EU, Serbia has a vibrant defense industry that uses clever technological workarounds to solve problems. If credible concerns remain that future Russia aggression will isolate the Baltic states, NATO could invest in fixed barriers akin to the Kuwait-Iraq border[12]—deploying tank traps, trenches, and artillery in key areas like the Suwalki Gap to prevent armored invasion. Similar defenses could be deployed within Ukraine when a peace agreement is reached. Most likely, planners have already drafted many different scenarios for a conflict with Russia in Eastern Europe. Such plans need to be continually revised and developed with military exercises and wargaming. Unlike wargames of the past, today’s wargames should encompass new stakeholders from elsewhere in industry and government: logisticians, cybersecurity professionals, ferry operators, airlines, and railroads. For military planners and defense contractors, there will likely be significant opportunities to develop new programs to counter Russian aggression. The fact that Russian forces have faced significant losses due to MANPADS[13] and anti-tank missiles means that those same weapons could be used against NATO forces. New countermeasures are likely needed to protect armored vehicles and aircraft. Planners can focus on lower cost guided missile systems and more readily deployable anti-aircraft systems to harden Eastern Europe against conflict. Independent assessments suggest that most European militaries currently field so few tanks that there is little ability to procure replacement parts for these vehicles. In addition to careful logistical planning, NATO militaries could pre-position fuel and parts in vulnerable portions of Eastern Europe. Conclusions The Russian invasion of Ukraine is a deeply unfortunate development for European regional security. The conflict serves as an important test case for modern war concepts and offers policymakers insights about the preparedness of Russia’s armed forces and the validity of current tactics and doctrines. Additionally, the conflict highlights the growing role of drones and surveillance technology, the importance of strong air defense, the difficulties of waging a large-scale conventional war, the potency of small anti-tank missiles, and the shift toward a contemporary form of traditional great power warfare. References [1] James Lacey, et al., The Wargame Before the War: Russia Attacks Ukraine, War on the Rocks, (March 2, 2022), https://warontherocks.com/2022/03/the-wargame-before-the-war-russia-attacks-ukraine/. [1] Marc Champion, “How Ukraine’s rail network threw Russia’s military off track,” Japan Times, (March 5, 2022), https://www.japantimes.co.jp/news/2022/03/05/world/russia-military-ukraine-railroad/. [2] Tor Bukkvoll, Their Hands in the Till: Scale and Causes of Russian Military Corruption, 34(2) Armed Forces & Society 259, 259 (2008). [3] Tor Bukkvoll, Their Hands in the Till: Scale and Causes of Russian Military Corruption, 34(2) Armed Forces & Society 259, 260 (2008). [4] Tor Bukkvoll, Their Hands in the Till: Scale and Causes of Russian Military Corruption, 34(2) Armed Forces & Society 259, 261 (2008). [5] “Central Asian Migration to Russia,” Voices on Central Asia, (Feb. 18, 2021), https://voicesoncentralasia.org/central-asian-migration-to-russia-legalization-in-2020/. [6] See generally “Russia’s Nuclear Weapons: Doctrine, Forces, and Modernization,” Congressional Research Service, (March 21, 2022), https://sgp.fas.org/crs/nuke/R45861.pdf. [7] “Russian Air and Missile Defense,” CSIS, (Aug. 3, 2021), https://missilethreat.csis.org/system/russian-air-defense/. [8] See generally Zabecki, David T., Dieter. Krüger, and J. Hoffenaar. Blueprints for Battle Planning for War in Central Europe, 1948-1968. Lexington, Ky: University Press of Kentucky, 2012. [9] “Nuclear Close Calls: Able Archer 83,” Atomic Heritage, (Jun. 15, 2018), https://www.atomicheritage.org/history/nuclear-close-calls-able-archer-83. [10] “Bucha killings: Satellite image of bodies site contradicts Russian claims,” BBC, (April 5, 2022), https://www.bbc.com/news/60981238. [11] See generally Viljar Veebel & Zdzislaw Sliwa, The Suwalki Gap, Kaliningrad and Russia’s Baltic Ambitions, Scandinavian Journal of Military Studies, 2(1), 111–121, (2019), http://doi.org/10.31374/sjms.21. [12] See “The Berm,” Global Security, (2007), https://www.globalsecurity.org/military/world/gulf/kuwait-the-berm.htm. [13] See generally Matt Schroeder, “Countering the MANPADS Threat: Strategies for Success,” Arms Control Today, (2022), https://www.armscontrol.org/act/2007-09/features/countering-manpads-threat-strategies-success.

One hundred seventy-five: the number of living indigenous languages in the U.S.[1] The number marks a dramatic decline from the estimated 300 tongues spoken at the time that Columbus arrived in the Caribbean in 1492.[2] Indigenous languages are in a state of crisis. After centuries long setbacks due to disease-related declines, genocide, forced population transfer, and aggressive assimilation in federally sponsored school systems, indigenous languages face continued lack of support and encroachment by mass media.[3] If current trends continue, only twenty indigenous languages will still be viable in 2050.[4] Supporting endangered language documentation and revitalization is a critical issue of our time, and an essential ingredient in building strong indigenous communities both on reservations and within the U.S. more broadly. Therefore, Congress, states, and indigenous groups have a short-lived opportunity to act, and cement indigenous languages more firmly in the law. Since 1968, Native Americans have slowly regained lost sovereignty, reasserting self-determination. Similar measures have improved the lot of Alaska Natives and Hawaiians. Improved status for indigenous languages serves the values of federalism, honoring long-standing cultures that are deeply rooted on this continent (and in the Pacific). The US federal government has an obligation to provide financial and legislative support for the revitalization of indigenous languages. Linguistic rights are implied by the US Constitution and the treaties with indigenous groups, and are an essential part of future federal policy towards indigenous people. New Zealand, Scandinavia, and Taiwan provide models which could be emulated to achieve these goals. Fortunately, the development of grant programs and support for indigenous languages since 1990, with major amendments in 2015 and 2021 suggest a brighter future for indigenous languages in the US. Congress should clarify that these supports extend to indigenous sign languages and extinct languages. In coordination with the Federal Communications Commission, it should support improvement of telecom infrastructure that will allow better access to—and promotion of—indigenous languages. It may also wish to consider clarifying Indian civil rights law to uphold tribal sovereignty in the area of linguistic rights, while ensuring that indigenous languages are not turned into a cudgel against tribal republicanism. Congress should adopt a new piece of legislation, referred to in this paper as the Sequoyah Act, to sponsor indigenous language revitalization, incorporating and expanding on legislation passed to-date. States could adopt similar legislation, or grant official language status to indigenous languages at the state level, thereby supporting and affirming indigenous cultures within the U.S. II. LANGUAGE AND LINGUISTIC RIGHTS IN THE UNITED STATES It is no exaggeration to describe the US as one of the world's most ethnically pluralistic nation, with over sixty million of its 330 million residents speaking a first language other than English.[5] The first humans are believed to have arrived in North America 15,000 years ago from Siberia, soon diversifying into numerous linguistic and cultural groups: today’s Native American groups.[6] In 2020, the Census Bureau reported that approximately 9.7 million U.S. citizens are Native American or Alaska Native, the descendants of around two percent of the original population that survived war and disease during the European settlement of North America.[7] These groups engaged in long-distance trade and agriculture, built large settlements, and produced ceramics over the course of thousands of years.[8] However, the arrival of European settlers in the 1600s initiated a long period of cultural decline driven in large part by Old World infectious diseases such as smallpox and measles, which decimated indigenous communities. Britain, France, and Spain as the most significant European powers in North America sought alliances with powerful Native American tribes and confederations. In British North America, the King imposed a ban on settlement west of the Appalachians, adding to a list of grievances seized upon by the American colonists in the American Revolution.[9] The early US grew rapidly westward through a combination of land purchases and conquest, soon coming into conflict with indigenous peoples. Mass deportations of Native Americans typified the early decades of the republic, followed by a period of internecine conflict and massacres on the frontier. As a condition of the Mexican Cession, the US agreed in the Treaty of Guadeloupe-Hidalgo to eliminate the Comanche threat posed to northern Mexico.[10] Almost from the start, values of federalism, individualism, personal liberty, and freedom of association have characterized the US. But the treatment of Native Americans—together with the treatment of slaves and their descendants—were two areas where this noble outlook saw little implementation. The position of Native Americans has evolved considerably in American public life. Fortunately, notions of "Indian givers"[11] and the portrayals of mid-century Westerns has given way to a more complex picture, that largely portrays Native Americans as the victims of white settler colonialism. Nonetheless, contemporary attitudes still tend to see Native Americans as peripheral to American society—and official federal and state law does not take steps which are forceful enough to protect indigenous languages from extinction. A.The Decline of Indigenous Languages: Attempts at Assimilation The current total of 175 living indigenous languages is a substantial decrease from the estimated 300 languages spoken at the time of European contact.[12] Much of what is known about extinct Native American languages, or older versions of living languages is from European-language sources, including languages spoken more widely in the colonial period such as Swedish, Dutch, or Danish.[13] Although some languages in what is now the U.S., like Micmac, had pre-existing hieroglyphic writing systems, many indigenous writing systems were developed after contact in conjunction with missionaries.[14] This is true of Sauk, Fox, Winnebago, Kickapoo, Micmac, Cherokee, and other languages.[15] Trade and travel were part and parcel of life for many tribes, and to overcome language barriers with other native groups or Europeans, several pidgins, trade jargons, and sign languages developed, most famously Chinook Jargon, Mobilian Jargon, and Plains Sign Language.[16] In other cases, tribes adopted European languages, like the variant of French spoken by the Houma Indians of Louisiana.[17] The American landscape is dotted with indigenous place names and descriptors for North American species.[18] Take for instance, Mississippi, drawn from an Ojibwe compound word for “big river.” Algonquin lends us ubiquitous words like squash, chipmunk, toboggan, tomahawk, and raccoon.[19] But in spite of the ever-present contribution of indigenous languages, the actual state of most of these languages is dire in the 21st century, with many extinct—or on the verge of disappearing—due to over two centuries of population decline, forced population transfer, outright genocide, and assimilation polices. European, and principally Anglo-American settlement of what is now the U.S. is believed to have resulted in the death of ninety-five percent of Native Americans by the end of the 19th century.[20] Native people were steadily extirpated from eastern portions of the continent by both accidental and intentional means, with European diseases playing a large role.[21] Conflict and denigration of native people was widespread but by no means universal. In 1643, Roger Williams, founder of Rhode Island and proponent of religious tolerance published A key into the language of America, a comparatively humanizing attempt to understand the Indians of the Narragansett Bay region.[22] He wrote “For my selfe [sic] I have uprightly laboured to suite my endeavours to my pretences: and of later times (out of desire to attaine [sic] their Language). . . Many solemne [sic] discourses I have had with all sorts of Nations of them, from one end of the Countrey [sic] to another. . .”[23] For Roger Williams, understanding native languages was a means of understanding native cultures as well. Although some tribes groups reached a degree of stability with their European neighbors, native people often came to be viewed as “unassimilable” aliens after the American Revolution.[24] Quakers in Pennsylvania and New Jersey promoted a more tolerant objective of assimilation that gained some popularity with President Washington and President Jefferson.[25] In Johnson v. M’Intosh, in 1823, the Supreme Court famously asserted federal authority over Indian tribes based on the doctrine of discovery.[26] By asserting broad federal authority over Indians, the case paved the way for subsequent forced removal of Indians to reservations.[27] In the South, the so-called “Five Civilized Tribes,” the Cherokee, Creek, Chickasaw, Choctaw, and Seminole tribes engaged in advanced trade and agriculture, held slaves, and used written languages.[28] The Cherokee polymath, Sequoyah, developed a unique syllabary to write the Cherokee language in the 1820s.[29] In spite of the cultural similarities between the Five Civilized Tribes and white Georgia citizens, Georgia urged Congress to act against the tribes.[30] The Supreme Court, led by Chief Justice Marshall held for the Cherokee and indicated that tribes are in effect domestic dependent nations.[31] Nonetheless, the Jackson Administration went ahead with the deportation of Cherokees westward to Oklahoma resulting in 8,000 deaths along the Trail of Tears.[32] Native Americans, even those with Westernized American customs were seen as occupying valuable land that could be freed up for agriculture, and inhabitation by new arrivals.[33] The existence of Cherokee syllabary undermined the idea of Native American cultural inferiority that served as the premise of Indian removal, prompting public outcry from many American leaders even at the time of deportation. Additionally, Cherokee syllabary gave Cherokee Indians a means of resisting U.S. hegemony, with ten percent of current day Eastern Cherokee speaking the language, and was used to document tribal law and folk medicine even in the aftermath of the tragic removal.[34] State governments and private actors were often as callous as the federal government in their treatment of Native Americans. In the single most egregious example, California in 1850 passed Chapter 133, authorizing genocide against its native residents, including taking natives into indentured servitude.[35] By the early 1870s, as many as 16,000 native California Indians were exterminated or worked to death.[36] In the aftermath of the Civil War, Congress feared disunity in the U.S. Native Americans were perceived as standing in the way of economic progress and particularly in the West still controlled valuable lands that the government wanted to open up for settlement.[37] Perhaps due to awareness of cultural achievements like the Cherokee syllabary, Native Americans were seen as being on a more equal footing with white Americans in the 19th century’s racial hierarchy if they could be retrained in the ways of “civilization.”[38] In 1871, the President and Senate were ostensibly stripped of their power to negotiate treaties with tribes, but in fact agreements continued to be made, adopted as legislation by Congress.[39] Between 1887 and 1934, the Department of the Interior allotted parcels of land to Indian heads of households.[40] The land would be held in trust for twenty-five years, before the Indian owner gained full-title.[41] But full-title would expose these properties—many on marginal land—to state and local taxation, often resulting tax foreclosure.[42] The result was a rapid fragmentation of Indian lands, with the goal of assimilating Indians with the rest of American society.[43] At the same time as tribes were dismantled through federal Indian land policy, the federal government launched a formal policy of assimilating Native Americans, which took the form of forced enrollment of native children in boarding schools after 1879.[44] In the words of Richard Henry Pratt, the founding director of the Indian residential Carlisle School, the goal of the Bureau of Indian Affairs was to “Kill the Indian, save the man.”[45] This meant prohibiting children from speaking their indigenous languages, contributing significantly to the dramatic decline of Native American languages.[46] Between 1879 and 1960, an estimated 100,000 Native American children passed through boarding schools, and even as late as 1971 seventeen percent of Native American children were in foster care or institutions.[47] Indians also lost out at the state level, particularly in the binary racial system of the Jim Crow South.[48] The Houma Indians in Louisiana, for instance, were classified as “coloured” by the state supreme court in 1918, and were subject to racially segregated schools.[49] Houma marriages were unrecognized by the state and as a result Houma children were illegitimate and could not inherit land.[50] Once oil was discovered in the region, private actors exploited lack of English knowledge among the Houma to fraudulently acquire land and conduct tax sales.[51] In one of the most flagrant abuses of Louisiana’s state powers leveled against Indians, some Ofo Indians were placed into mental institutions for speaking their own language, on the grounds that were not “real” Indians simply because the tribe lacked federal recognition.[52] The Indian New Deal beginning in 1934 with the Indian Reorganization Act was the first statute that allowed tribes to opt out of federal legislation, ending further allotments and directing the Secretary of the Interior to repurchase land for tribes.[53] During World War II, as it did in World War I, the federal government found a use for indigenous language, recruiting Navajo men as “code talkers” or “windtalkers” concealing U.S. communications from interception by Japan by speaking in Navajo.[54] Ironically, the U.S. came to rely on indigenous languages to meet its wartime needs, even while attempting to stomp them out at home. Although the Indian New Deal offered a ray of hope, it did nothing to roll back assimilationist cultural policies. The boarding schools program formally ended with the 1953 Indian Termination Act.[55] But the Termination Act itself was assimilationist in its goals: Congress terminated tribal governments, eliminated recognition, revoked federal funds, and privatized tribal businesses.[56] President Johnson signaled a different direction with the passage of the Indian Civil Rights Act, mandating tribes to follow many aspects of Constitutional law, and established the National Council on Indian Opportunity (NCIO)—although the Johnson Administration’s efforts may have been largely assimilationist. The Nixon Administration pushed for tribal self-determination, which took the form of the Indian Self-Determination and Education Assistance Act.[57] Language goes to the core of what it means to be a “people,” in an ethno-linguistic sense. Yet, the role of languages is more than theoretical in the context of federal recognition, tribal law, and treaty interpretation. After attitudes began to shift in favor of Indian sovereignty after the 1960s, indigenous languages—and culture—received newfound attention in the law. In United States v. Washington, in 1974, [58] the U.S. sued to settle Indians’ off-reservation treaty fishing rights. Judge Boldt, deciding the case, in favor the Indians looked at what the Indians would have understood at the time the treaty was negotiated. “There is no indication that the Indians intended or understood the language ‘in common with all citizens of the Territory’ to limit their right to fish in any way.”[59] Considering what the signers of the treaty would have understood at the time, communicating in Chinook Jargon, the Ninth Circuit held for the Indians again in 2017, when faced with a challenge to culvert construction by the State of Washington.[60] The Supreme Court followed this line of reasoning in the 2019 Cougar Den case.[61] In Cougar Den, Justice Gorsuch concurred, contending that the treaty should be interpreted as the Yakama language speakers would have understood it, whereas Justice Kavanaugh dissented taking a different interpretation of the treaty, in part on language grounds.[62] Alongside the rise in treaty interpretation based upon indigenous languages, some tribes began to readopt their languages within tribal law. Within the Navajo Nation, the Navajo Nation Bar now attracts both members of the tribe and non-Indians.[63] But simultaneously, beginning in the 1980s there was a resurgence of traditionalism within Navajo law, emphasizing Navajo language documents, judges as peacemakers, and above all “Navajo thinking.”[64] During the critical years of the 1970s and 1980s as cultural preservation and tribal sovereignty returned to being priorities, Congress also took steps to foster cultural cohesion, reversing course on assimilationist policies that reined supreme at the Bureau of Indian Affairs as late as 1974. In 1958, during the Termination Era, the Bureau of Indian Affairs had launched the Indian Adoption Project, placing Indian children with white families.[65] A press release from 1966 boasted “One little, two little, three little Indians—and 206 more—are brightening the homes and lives of 172 American families, mostly non-Indians, who have taken in the waifs as their own.”[66] Between 1969 and 1974, as many as thirty five percent of native children were removed from their homes and placed in foster care or adopted.[67] Responding to this state of affairs, Congress passed the Indian Child Welfare Act (ICWA) in 1978.[68] ICWA grants tribes automatic jurisdiction in child custody proceedings for children domiciled on reservations, and calls on state courts to transfer jurisdiction to tribes for off-reservation cases involving native children—although in practice the ICWA has given rise to contests between state and tribal jurisdiction.[69] In parallel with the reassertion of treaty rights and a reemergent role for native languages in tribal law, Congress prioritized indigenous rights in different areas. Historical preservation laws expanded to encompass Native Americans throughout the waves of Congressional statutory action in the 1970s, 1980s, and 1990s. The Native American Graves Protection and Repatriation Act of 1990 (NAGPRA) is the cornerstone of a statutory regime intended to better protect Native American cultural artifacts. NAGPRA provides that items may be excavated with a permit under section 4 of the Archaeological Resources Protection Act of 1974, in consultation with tribes.[70] NAGPRA emerged in 1990 out of the Reservoir Salvage Act of 1960, the Archaeological Resources Protection Act, the American Indian Religious Freedom Act, and the 1989 National Museum of the American Indian Act.[71] NAGPRA applies to four types of items: (1) human remains, (2) funerary objects, (3) sacred items, and (4) objects of “cultural patrimony.”[72] Items of cultural patrimony are “items having ongoing historical, traditional, or cultural importance central to the Indian tribe or Native Hawaiian organization itself.”[73] Courts have upheld “cultural patrimony” against void for vagueness constitutional challenges, such as affirming the conviction of an art dealer selling Hopi masks.[74] Many states have adopted state-level statutes similar to NAGPRA.[75] The advent of NAGPRA at the federal level, and similar legislation at the state level is in effect a legislative record of governmental interest in proactive protection of Native American culture. C. Linguistic Rights and the Status of Indigenous Languages in Federal Law after 1990 In the same historical moment as the enactment of NAGPRA, Congress adopted the Native American Languages Act of 1990.[76] The statute does not define linguistic rights, but comes closer to formalizing respect for indigenous languages than any other legal instrument. The U.S. Constitution is an intentionally sparse document and makes no reference to linguistic rights.[77] Nevertheless, some form of linguistic rights would seem to be inferred by the Constitution. Courts have focused on "substantive due process" under the Fifth and Fourteenth Amendment.[78] Due process concerns around language emerged during a wave of anti-German backlash brought on by World War I.[79] A Nebraska law forbid teaching of any language other than English to students until after graduation from the eighth grade, and a parochial school teacher was convicted of teaching German to a student.[80] The US Supreme Court reversed the conviction on due process grounds.[81] "It is well known that proficiency in a foreign language seldom comes to one not instructed at an early age, and experience shows that this is not injurious to the health, morals or understanding of the ordinary child."[82] Indigenous language rights in the U.S. could be positioned under (1) due process, (2) equal protection, (3) First Amendment free speech, (4) retained rights under the Ninth Amendment, and (5) the tribal trust relationship with the federal government—or by extension freedom of association under the First Amendment.[83] Historic treaties with Native Americans in the 18th and 19th centuries are largely silent on the question on linguistic rights, with the exception of the 1828 Treaty with the Western Cherokee, that mentions the Cherokee language indirectly.[84] Thus, the enactment of NALA was a major step for Congress. Although NALA was a forceful statement of Congressional support for Indian self-determination, it did not specify any actions or provide funding for indigenous languages.[85] Congress subsequently adopted the NALA of 1992, which did include one- to three-year grants for training programs, disseminating teaching materials, preparing broadcasts, or carrying out audio-visual recordings.[86] However, the second NALA allocated initially only two million dollars a year and required a twenty percent grant match by recipients.[87]The Act extends its definition of "Native Americans" to Native Hawaiians and "Native American Pacific Islander[s]" thus encompassing Chamorrans and Samoans.[88] However, thirty years later, financing under the Act has proven sparse, dedicating $13 million annually between 2020 and 2024, while the provincial government of British Columbia in Canada has dedicated $50 million per annum in a single province.[89] Only a few court cases have been brought under NALA. In 1996, the District of Hawaii ruled against Native Hawaiians in a suit brought against the state Department of Education and Bureau of Education, which indicated that NALA does not abrogate Eleventh Amendment immunity for states or rights enforceable under § 1983.[90] Congress expanded on its early 1990s pronouncements in 2006[91] and 2015, by establishing a grant program to fund schools that use Native American and Native Alaskan, reserving twenty percent of appropriations under 20 U.S.C.A. § 7492 for this funding.[92] It defined “eligible entities” for grant purposes as Indian tribes, tribal colleges and universities, tribal or local educational institutions, Bureau of Indian Education schools, nontribal for-profit organizations, private or tribal nonprofit organizations, and Alaska Native Regional Corporations.[93] Effective March, 2021, the U.S. Code provides for grants to encourage language transfer between old and young Native Americans, support printing and distribution of training materials, buying audiovisual equipment for documentation, training language educators, and translators, and transcribing existing oral testimony.[94] Additionally, Congress added supports for language nests, language restoration programs, and language survival schools.[95] Secretary of the Interior Deb Haaland and First Lady Jill Biden visited the Cherokee Nation in early December, 2021 to promote Native American language rights. The Office of Indian Economic Development touted its Living Languages Grant Program, with a goal of disbursing fifteen to sixty grants in 2022, valued between $25,000 to $200,000.[96] Chamorro, the native language of Guam, is presumptively included in consideration for grant financing based upon the text of 25 U.S.C.A. § 2902, which reads “The term ‘Native American’ means an Indian, Native Hawaiian, or Native American Pacific Islander.” Thus far, federal law has not explicitly referred to Chamorro, although efforts at language revival are recognized in Guam’s territorial law.[97] The Guam Department of Education is required to develop a Chamorro curriculum in all island elementary and secondary schools, encompassing six years of mandatory Chamorro coursework, and the regular singing of the Guam Hymn.[98] D. Indigenous Languages in State Law Among U.S. states, Hawaii may be the leader in indigenous language rights. English and Hawaiian are formally declared as official state languages in the Hawaiian Constitution.[99] To-date, Hawaii is the only state with an indigenous language enshrined in its state constitution, but South Dakota in 2019 adopted Lakota, Dakota, and Nakota as official languages through legislation.[100] The question of indigenous language rights is inevitably bound up in questions of English as a state official language. Thirty states have adopted English as the official language at the state level.[101] However, the U.S. English Foundation states, “‘English-Only’ is an inaccurate term for any piece of official English legislation. U.S. English, Inc. has never and will never advocate for any piece of legislation that bans the use of languages other than English within the United States.”[102] This assessment would appear to be true in the context of indigenous languages, because both Hawaii and North Dakota have adopted official English laws.[103] E. Indigenous Linguistic Rights Around the World Article 13 of the UN Declaration on the Rights of Indigenous People proclaims, “Indigenous peoples have the right to revitalize, use, develop and transmit to future generations their histories, languages, oral traditions, philosophies, writing systems and literatures, and to designate and retain their own names for communities, places and persons.”[104] Official status for minority language is a common policy in many countries, particularly within the European Union.[105] Many countries have witnessed stability thanks to a lingua franca, which can facilitate trade and learning, while lessening ethnic and regional differences. However, official policies of multilingualism can promote both goals. New Zealand stands out as a model for the U.S. given its similar history and comparable, English-derived common law legal system, where the 1840 English-Maori Treaty of Waitangi serves as the foundational, constitutional document. [106] In spite of high Maori language literacy in the 19th century, official policy promoted English and ultimately the mass migration of Maori off of traditional lands to cities throughout much of the 20th century.[107] After almost a century of complete obscurity in New Zealand law, Parliament adopted the Maori Affairs Act of 1953, which granted official status to the Maori language.[108] New Zealand courts proved unwilling to use the 1953 Act to uphold a right to a Maori interpreter in courts, in the 1980 case Mihaka v. Police.[109] However, in 1975 the government had passed the Treaty of Waitangi Act, creating a Waitangi Tribunal to investigate Maori claims.[110] In 1986, weighing testimony from Maori people, linguists, and government agencies, as well as examining the original Maori text of the Treaty of Waitangi, the Tribunal concluded that the Maori language was a “valued possession” within the meaning of the treaty, and the national government had an affirmative duty to preserve it.[111] In 1981, a new generation of Maori parents launched Te Kohanga Reo language nests to boost Maori language knowledge, with 600 active throughout the country by 1998.[112] What started as a purely private initiative gained steam after the 1986 Tribunal decision, when the New Zealand Parliament passed the Maori Language Act of 1987.[113] The same year, it established the Maori Language Commission to track language proficiency and began providing millions of dollars in funding toward language nests and school programs.[114] Scandinavian governments have emerged as leaders in national government support for indigenous languages.[115] In Sweden, Sami indigenous people (better known in English as Lapps) comprise only 0.1 percent of the population.[116] Sami people were historically mistreated along a similar pattern as Native Americans, with children placed in assimilationist boarding schools until 1962, human remains kept in government research institutions, and land seized for mining.[117] Starting in 1962, Sweden implemented Sami language education programs, providing weekly classes, textbooks, university instruction, and teacher training.[118] Taiwan, after the end of authoritarian rule in the 1980s became a model for linguistic rights, reversing decades of poor treatment of its indigenous inhabitants.[119] Throughout the 1990s, continued dominance by the traditionally Chinese nationalist Kuomintang party prevented official status for indigenous languages in schools, but the success of the Taiwanese nationalist Democratic Progressive Party in the late 1990s resulted in mandatory Taiwanese language classes in primary schools after 2001.[120] The National Languages Committee that previously promoted Mandarin Chinese shifted to promoting indigenous languages. The country’s National Chengchi University produced thirty eight language textbooks and a series of thirteen proficiency exams, which aboriginal students can use to gain additional points for university admissions.[121] Borrowing from the revitalization efforts in New Zealand for Maori, Taiwan established “language nests” placing elderly speakers together with pre-school children after 2001.[122] Even countries without the degree of formalized minority language protection have increasingly taken some action to serve minority language speakers. For instance, by 2007, the U.S. and Canada each provided some degree of bilingual education support, while in Israel, Arab residents of ethnically mixed towns persuaded the Israeli Supreme Court to mandate bilingual signs.[123] F. Unique Considerations with American Indigenous Languages: Voting Rights Indians were long excluded from the voting rolls in the US.[124] The Civil Rights Act of 1866 excluded “Indians not taxed” and in the 1884 case Elk v. Wilkins the Supreme Court found Indians were not citizens within the meaning of the 14th Amendment.[125] Even after the passage of the 1924 Indian Citizenship Act, six states banned Indians from voting if they were untaxed.[126] Until 1958, North Dakota’s Constitution required Indians to sever tribal ties two years before voting in any election.[127] The Voting Rights Act of 1965 applied the Fifteenth Amendment more forcefully, but through the constitutionally suspect pre-clearance regime, administered by Department of Justice and the courts.[128] Section 203 of the VRA requires that jurisdictions with large language minorities offer written materials in languages other than English.[129] However, 1982 VRA amendments raised the requirements so that at least five percent of individuals in a jurisdiction needed to speak a second language.[130] As a result, VRA coverage was eliminated for most previously covered counties in Oklahoma, North Dakota, and Montana.[131] In 2000, over twenty percent of Native Americans had limited English proficiency.[132] Online voter registration, where implemented is typically not offered in indigenous languages, and even the production of written material for elections may be of limited value where languages are primarily spoken rather than written.[133] The VRA remains a fiercely contested piece of federal legislation, centered on left-right debates around voter ID laws. Proponents of Native American voting rights contend that Native Americans continue to face barriers to voting. For instance, in 2019, only 1.4 percent of North Dakota legislators were Native American, even though 6.5 percent of the state’s population are indigenous.[134] Democrats have put forward the Native American Voting Rights Act to reimpose pre-clearance, and (in one iteration) fund tribal-state consortiums to expand Native voter registration.[135] Apart from the question of federal voting rights, indigenous languages are also implicated in tribal politics. Some tribes have language fluency requirements to stand for tribal office.[136] Such requirements proved popular in the Southwest, with the Navajo, Hopi, and White Mountain Apache tribes.[137] However, in 2015, the Navajo Nation eliminated its Navajo fluency requirements for tribal offices.[138] G. Unique Considerations with American Indigenous Languages: Telecommunications Access to telecommunications services and new media technology is central to indigenous language preservation and revitalization. Although television and internet can enhance the “network effects” of language, encouraging greater awareness of common tongues, it can also offer a vital avenue to audiovisual or text archiving, creating and distributing media, and coordinating among groups with similar experiences. Reliable telecommunications are particularly significant because over seventy eight percent of Indians live off of reservations, creating a physical and technological distance from reservation communities where indigenous languages are often most likely to be spoken.[139] Native American media has deep roots in the US.[140] Cherokees launched the bilingual English-Cherokee Phoenix newspaper in 1827.[141] Throughout the 1940s, some radio stations began to broadcast programs in indigenous languages.[142] In 1983, the American Native Press Archives launched as a means of collating indigenous publications.[143] The advent of the internet expanded Native American media with the Koahnic Broadcast Corporation, Indian Country Today, and Center for Native American Radio (financed in part by the Corporation for Public Broadcasting).[144] Walking into any university library is a good reminder of the extent of research on Native American culture, history, and archaeology. However, these resources—and the ability to engage with new media—remain out of reach for many reservation residents. At the dawn of the 21st century, as broadband and cellular service made rapid inroads throughout most of the US, reservations lagged far behind.[145] In 1999, only thirty-nine percent of rural Native American households had telephones, and forty-four percent of tribes lacked local radio stations.[146] At the time, tribal governments had not exercised regulatory authority over telecom, leaving that to the Federal Communications Commission (FCC) and in some cases state public utility commissions.[147] One commentator described reservations as subject to “geographic apartheid” and “electronic redlining,” with limited penetration of phone service and broadband internet. [148] But a more careful examination of the issues facing telecom on reservations reveals a more nuanced interplay between poorly considered tribal and federal policy. The FCC launched its Office of Native Affairs and Policy (ONAP) in 2010.[149] The same year, the FCC created a Tribal Radio Priority to support access to communications services.[150] In a 2019 report, ONAP identified current day challenges with telecom deployment on tribal lands.[151] Universal service funds are often targeted to single uses like libraries or healthcare, blocking opportunities for “synergies and efficiencies.”[152] The Ewiiaapaayp Band of Kumeyaay Indians in San Diego County, lacks phone and internet connectivity, although it appears on internet service provider maps as fully served. Although the tribe has proposed colocation of facilities, USF funds cannot be co-mingled at the present time.[153] When broadband providers receive federal telecom funds, such as out of the Connect America Fund, tribes are not consulted—and are often last in line for build out.[154] Broadband providers can sometimes meet build out requirements without actually building out infrastructure to tribes. In its report, the FCC recommended a Tribal Priority to accompany the 2010 Tribal Radio Priority.[155] “Tribes should be given first priority or a right of first refusal for receiving federal funding and the priority for subsidies should include the right of Tribes to exercise oversight, determine what service is acquired and how services should be distributed on or over Tribal lands with respect to all communications services, regardless of delivery technology.” For now, the FCC lacks a standard definition of “tribal lands,” complicating efforts to target funding.[156] By virtue of location, often in remote rural areas, many reservations are low priorities for telecom investment to begin with. But tribes are limited in their ability to collateralize assets to gain loans due to the inability to collateralize federal and state reservations lands and allotted trust lands.[157] Tribes are also inhibited where a tribal government lacks a reservation, has a checkerboard reservation, or lacks the ability to access “middle-mile” connections (uses of USF funds for middle-mile development can be limited in some circumstances).[158] Because tribes are sovereign domestic dependent nations, tribal laws apply on reservations. Zoning and land use laws vary widely, creating uncertainties for telecom infrastructure projects.[159] III. LEGAL ANALYSIS After centuries long setbacks, Native Americans, Pacific Islanders, and Native Alaskans have finally regained self-determination. However, indigenous languages continue to decline. Faced with this troubling situation, indigenous groups of all sizes have begun to act. In Wisconsin, the state’s eleven federally recognized tribes have coordinated with the state to put in place bilingual road signs thus emphasizing native languages in one of the most obvious examples of the linguistic landscape,[160] Ojibwe Indians have launched a “language nest” for young children at University of Minnesota-Duluth,[161] and the Fort Berthold Indian Reservation is working with the University of North Dakota to digitally preserve the Mandan, Hidatsa, and Arikara languages.[162] Tribal sovereignty granted tribal governments considerable flexibility to distribute vaccines during the Covid-19 crisis, and the Cherokee prioritized speakers the 2000 speakers of the Cherokee language.[163] Such prioritization by tribes of all sizes—even small ones—indicates the importance of language for what it means to be a “people” in the 21st century. The role of language in making a “people” is true not only in a cultural and sociological sense, but also in a legal sense. In 1974, the U.S. Supreme Court famously indicated that tribes are political, rather than racial in-nature, and that federal policy is intended to serve these “constituent groups,” which are “quasi-sovereign tribal entities whose [members’] lives and activities are governed by the BIA in a unique fashion.”[164] Although language is not a requirement for tribal membership, in the way that it is to become a U.S. citizen,[165] it can be a valuable basis for tribes as “constituent groups.” Congress has the ability to increase annual funding allocations for language grant programs. However, language preservation inevitably raises questions about priorities. Many reservations face serious funding shortfalls around education, policing, infrastructure, public health, and even fundamentals like food and medicine. Why prioritize language preservation when these other areas are neglected? For many tribes, these fundamental needs do come first, and enhanced federal support is doubtless welcome. But language preservation—and indeed revitalization—may be more essential than many imagine. Having a common tongue can be an essential part of what it means to be a people, and the type of cultural exchange needed to revitalize a language has the potential to enhance interest in education, promote intergenerational exchange, and networking within a tribe. In the event that Congress is unable to furnish additional funding for indigenous languages, Congress could work with tribes to develop a prudential or objective standard for allocating grants. Such a formula should weight the degree to which a language is documented in books, dictionaries, audio-visual material, and teaching material, against the number of potential speakers. The goal of this type of “language triage” would be to find languages that are both the least documented and have the most potential speakers, prioritizing funds for those languages first. Ensuring that languages are documented gives latitude to current and future generations to decide the role of language in their own community. For instance, current and future generations of Houma could opt to learn Houma French with its Choctaw grammar elements, revive the traditional Houma language, or use Mobilian Trade Jargon. Prioritizing language preservation is in-line with other federal policies enacted in the nearly sixty years since the passage of the Indian Civil Rights Act. Promoting indigenous languages, broadly speaking, serves the goals of the Indian Child Welfare Act, with its focus on keeping native families and culture intact.[167] Passing a Sequoyah Act as the capstone of a series of federal laws concerning indigenous languages would be a significant step. However, other federal, state, and municipal legal considerations must be weighed as well. A. Non-Native Nations? Among settler-immigrant countries, Canada and South Africa are perhaps notable for the presence of non-native, but nonetheless culturally and linguistically distinct ethnic groups that have undergone a process of advanced post-settlement ethnogenesis. French-Canadians (both Quebecois and Acadian) and Afrikaners are the examples that come to mind most readily. The US due to rapid settlement and a pattern of cultural homogenization has ample regional distinctions, but fewer groups that might compare with the cultural position of French-Canadians and Afrikaners. Nevertheless, the US is not without ethno-linguistically distinct, non-native groups. To varying degrees Cajuns in Louisiana, Acadians in Maine, Amish and Hutterites, ultra-Orthodox Jews—and communities added to the United States by conquest like the Tejanos of Texas or Puerto Ricans—might merit comparisons. Federal policy aimed at promoting strong cultural institutions might find other means of supporting this groups, although such support is likely to come most appropriately (and effectively) from the state level. Rather, the test under expanded federal grant funding is likely to be (1) federal recognition, (2) unrecognized indigeneity significantly similar to federally recognized groups, or (3) ethnogenesis out of indigenous elements. The goal of linguistic protections is likely to be over-inclusive, rather than under-inclusive. B. Improving the Position of Indigenous Languages at the State Level The formalization of indigenous official languages in two U.S. states with highly divergent politics, like Hawaii and South Dakota, suggests that there may be openness to similar legislative language promotion elsewhere. Adopting some form of official or minority language status through legislation—or in the state constitution—should be a priority, particularly in states with large indigenous populations like California, Arizona, New Mexico, Oklahoma, North Dakota, and Alaska. State university systems also have a significant role to play, providing coursework in indigenous languages, or granting language credit to indigenous speakers. For instance, Arizona State University has launched a Navajo language program.[168] Municipal governments can also play a role in promoting indigenous languages, through town, city, or county referendums or votes defining the languages of official business.[169] In Iowa, by late 2000, eleven counties had voted to make English the official language of county business, presaging a statewide official language bill.[170] Although little explored, the municipal avenue could be a way to implement increased supports, and indeed pressure state governments to act on indigenous languages. Although federal courts have consistently held that neither the Equal Protection Clause nor the Civil Rights Act of 1964 create a right to language access, in actuality denying public services based on language would quickly run afoul of race, ethnicity, and national origin protections.[171] Executive Order No. 13,166, issued in August, 2000,[172] requires federal funds recipients to “ensure meaningful access to programs and activities,” for those with limited English proficiency.[173] State agencies and municipalities are strongly encouraged to come up with data-based plans and provide language access services that can include hiring interpreters or bilingual staff, coordinating with community groups, or contracting for telephone translation services.[174] Telephone-based systems have proven particularly important for some languages, like Hmong, that are oral only.[175] Tribal governments can file complaints with federal agencies funding state and municipal programs if language services are not met, or depending upon the state remedies available may also be able to sue in state courts under state civil rights statutes.[176] C. Improving Telecom on Reservations to Boost Indigenous Languages The FCC, in coordination with tribal governments, could create a more encompassing Tribal Priority for communications, to support the development high speed broadband, 5G, and traditional cellular and radio infrastructure on reservations. Simultaneously, in coordination with tribes and the Bureau of Indian Affairs, the FCC should collate a centralized database of tribal laws governing telecom infrastructure, and promulgate a model statute for tribes to accelerate the deployment process. Additionally, the FCC should clarify data gathering for USF funds and require that broadband providers build out reservation infrastructure upon receipt of funds. IV. CONCLUSION The US federal government has an obligation to provide financial and legislative support for the revitalization of indigenous languages. Linguistic rights are implied by the US Constitution and the treaties with indigenous groups, and are an essential part of future federal policy towards indigenous people. Scandinavia, New Zealand, and Taiwan provide models which could be emulated to achieve these goals. Fortunately, the development of grant programs and support for indigenous languages since 1990, with major amendments in 2015 and 2021 suggests a brighter future for indigenous languages in the US. Congress should clarify that these supports extend to Chamorro and to extinct languages. In coordination with the FCC, it should support improvement of telecom infrastructure that will allow better access to—and promotion of—indigenous languages. REFERENCES [1] Allison M. Dussias, Indigenous Languages Under Siege, 3 Intercultural Hum. Rts. L. Rev. 5, 6 (2008). [2] Allison M. Dussias, Indigenous Languages Under Siege, 3 Intercultural Hum. Rts. L. Rev. 5, 6 (2008). [3] Allison M. Dussias, Indigenous Languages Under Siege, 3 Intercultural Hum. Rts. L. Rev. 5, 6 (2008). [4] Allison M. Dussias, Indigenous Languages Under Siege, 3 Intercultural Hum. Rts. L. Rev. 5, 6 (2008). [5] American Academy of Arts & Sciences, The State of Languages in the US: A Statistical Portrait 3 (2015). [6] See Marren Sanders, Genomic Research in Indian Country: The New Road to Termination?, 39 Okla. City U. L. Rev. 1, 9 (2014). [7] 2020 Census: Native population increased by 86.5 percent, Indian Country Today, (Aug. 13, 2021), https://indiancountrytoday.com/news/2020-census-native-population-increased-by-86-5-percent; Kelly E. Yasaitis, NAGPRA: A Look Back Through the Litigation, 25 J. Land Resources & Envtl. L. 259, 260 (2005). [8] See generally Pennsylvania Historical Commission & Museum, Native American Archaeology (Sept. 10, 2015), http://www.phmc.state.pa.us/portal/communities/archaeology/native-american/index.html. [9] Angela R. Riley, Indians and Guns, 100 Geo. L.J. 1675, 1694 n.106 (2012). [10] John W. Ragsdale, Jr., Values in Transition: The Chiricahua Apache from 1886-1914, 35 Am. Indian L. Rev. 39, 45 n.26 (2011). [11] Lakshmi Gandhi, The History Behind The Phrase 'Don't Be An Indian Giver', NPR (Sept. 2, 2013), https://www.npr.org/sections/codeswitch/2013/09/02/217295339/the-history-behind-the-phrase-dont-be-an-indian-giver. [12] Allison M. Dussias, Indigenous Languages Under Siege, 3 Intercultural Hum. Rts. L. Rev. 5, 6 (2008). [13] Lyle Campbell, American Indian Languages: historical linguistics of Native America 9 (2000). [14] Lyle Campbell, American Indian Languages: historical linguistics of Native America 9 (2000). [15] Lyle Campbell, American Indian Languages: historical linguistics of Native America 9 (2000). [16] Lyle Campbell, American Indian Languages: historical linguistics of Native America 10 (2000). [17] Diane Smith, ed. et al., Developing Governance and Governing Development 90-92 (2021). [18] Lyle Campbell, American Indian Languages: historical linguistics of Native America 11 (2000). [19] Lyle Campbell, American Indian Languages: historical linguistics of Native America 11 (2000). [20] Sabby Sagall, Final Solutions: Human Nature, Capitalism and Genocide 111 (2013). [21] Sabby Sagall, Final Solutions: Human Nature, Capitalism and Genocide 111-14 (2013) (explaining that epidemics continued to sweep native communities until 1900). [22] Roger Williams, A key into the language of America (1643) (unnumbered book). [23] Roger Williams, A key into the language of America (1643) (unnumbered book). [24] Sabby Sagall, Final Solutions: Human Nature, Capitalism and Genocide 113-14 (2013) (Great Lakes populations had begun to recover from first contact during the 1700s, in response to the fur trade). [25] Sabby Sagall, Final Solutions: Human Nature, Capitalism and Genocide 116 (2013). [26] Johnson v. M’Intosh, 21 U.S. 543, 543 (1823). [27] See generally Cherokee Nation v. State of Ga., 30 U.S. 1, 3 (1831). [28] Sabby Sagall, Final Solutions: Human Nature, Capitalism and Genocide, 117 (2013). [29] Margaret Bender, Signs of Cherokee Culture : Sequoyah's Syllabary in Eastern Cherokee Life xi (2002) (explaining that some tribes resisted literacy fearing it would result in language loss, but the existence of written forms of the language have proven critical to the long-term preservation of the Cherokee and Ute languages). [30] Id. [31] Cherokee Nation v. State of Ga., 30 U.S. 1, 3 (1831). [32] Sabby Sagall, Final Solutions: Human Nature, Capitalism and Genocide, 117 (2013). [33] Sabby Sagall, Final Solutions: Human Nature, Capitalism and Genocide, 118 (2013). [34] Margaret Bender, Signs of Cherokee Culture : Sequoyah's Syllabary in Eastern Cherokee Life 7-8, 112 (2002). [35] Brendan C. Lindsay, Murder state: California’s Native American Genocide, 1846-1873, 245 (2012). [36] Benjamin Madley, An American Genocide, The United States and the California Catastrophe, 1846–1873, 11 (2016). [37] See Jessica Keating, The Assimilation, Removal, and Elimination of Native Americans, University of Note Dame 6 (2020). [38] See Jessica Keating, The Assimilation, Removal, and Elimination of Native Americans, University of Note Dame 6 (2020). [39] Matthew L.M. Fletcher, Federal Indian Law 8 (2016) (citing 25 U.S.C. § 71). [40] Matthew L.M. Fletcher, Federal Indian Law 9-10 (2016). [41] Matthew L.M. Fletcher, Federal Indian Law 9-10 (2016). [42] Matthew L.M. Fletcher, Federal Indian Law 9-10 (2016). [43] Matthew L.M. Fletcher, Federal Indian Law 9-10 (2016). [44] Ann Piccard, Death by Boarding School: “The Last Acceptable Racism” and the United States’ Genocide of Native Americans, 49 Gonz. L. Rev. 137, 151 (2013). [45] Ann Piccard, Death by Boarding School: “The Last Acceptable Racism” and the United States’ Genocide of Native Americans, 49 Gonz. L. Rev. 137, 154 (2013). [46] Ann Piccard, Death by Boarding School: “The Last Acceptable Racism” and the United States’ Genocide of Native Americans, 49 Gonz. L. Rev. 137, 152 (2013). [47] Courtney Hodge, Is the Indian Child Welfare Act Losing Steam?: Narrowing Non-Custodial Parental Rights After Adoptive Couple v. Baby Girl, 7 Colum. J. Race & L. 191, 202 (2016). [48] Diane Smith, ed. et al., Developing Governance and Governing Development, 90 (2021). [49] Diane Smith, ed. et al., Developing Governance and Governing Development, 90 (2021). [50] Diane Smith, ed. et al., Developing Governance and Governing Development, 90 (2021). [51] Diane Smith, ed. et al., Developing Governance and Governing Development, 90 (2021) (history of Houma Indians developed by Professor Adam Crepelle). [52] Adam Crepelle, Standing Rock in the Swamp: Oil, the Environment, and the United Houma Nation’s Struggle for Federal Recognition, 64 Loy. L. Rev. 141, 152 (2018). [53] Matthew L.M. Fletcher, Federal Indian Law 12 (2016). [54] Navajo Code Talkers and the Unbreakable Code, CIA, (Nov. 6, 2008), https://www.cia.gov/stories/story/navajo-code-talkers-and-the-unbreakable-code/. [55] Ann Piccard, Death by Boarding School: “The Last Acceptable Racism” and the United States’ Genocide of Native Americans, 49 Gonz. L. Rev. 137, 151 (2013) (as its name suggests, the Indian Termination Act attempted to shutdown tribes, denying sovereignty as a means of assimilation). [56] Matthew L.M. Fletcher, Federal Indian Law 12-13 (2016). [57] Matthew L.M. Fletcher, Federal Indian Law 13-14 (2016). [58] James T. Johnson, Treaty Fishing Rights and Indian Participation in International Fisheries, 77 Denv. U. L. Rev. 403, (1999) (citing United States v. Washington, 384 F. Supp. 312 (W.D. Wash. 1974)). [59] United States v. Washington, 384 F. Supp. 312, 333 (W.D. Wash. 1974). [60] United States v. Washington, 853 F.3d 946, 972 (9th Cir. 2017). [61] See generally Wash. State Department of Licensing v. Cougar Den, Inc., 139 S.Ct. 1000 (2019). [62] Wash. State Department of Licensing v. Cougar Den, Inc., 139 S.Ct. 1000, 1018-28 (2019). [63] James W. Zion, Civil Rights in Navajo Common Law, 50 U. Kan. L. Rev. 523, 543 (2002). [64] James W. Zion, Civil Rights in Navajo Common Law, 50 U. Kan. L. Rev. 523, 544-45 (2002). [65] Indian Adoption Project, Upstander Project, (2022), https://upstanderproject.org/firstlight/iap. [66] Indian Adoption Project, Upstander Project, (2022), https://upstanderproject.org/firstlight/iap. [67] Courtney Hodge, Is the Indian Child Welfare Act Losing Steam?: Narrowing Non-Custodial Parental Rights After Adoptive Couple v. Baby Girl, 7 Colum. J. Race & L. 191, 207 (2016). [68] 25 U.S.C. §§ 1901–1963. [69] Courtney Hodge, Is the Indian Child Welfare Act Losing Steam?: Narrowing Non-Custodial Parental Rights After Adoptive Couple v. Baby Girl, 7 Colum. J. Race & L. 191, 203 (2016); see also, ICWA Guide Online, Topic 2: Jurisdiction, National Indian Law Library (2022), https://narf.org/nill/documents/icwa/faq/jurisdiction.html. [70] 25 U.S.C. § 3002; see generally, Michael F.P. Doming, The Tale of the Tunica Treasure, The Harvard Crimson, (Oct. 13, 1983), https://www.thecrimson.com/article/1983/10/13/the-tale-of-the-tunica-treasure/ (explaining the legal dispute between the Tunica Indians of Louisiana and Harvard’s Peabody Essex Museum, a precursor of NAGPRA). [71] Kelly E. Yasaitis, NAGPRA: A Look Back Through the Litigation, 25 J. Land Resources & Envtl. L. 259, 264-65 (2005). [72] 25 U.S.C. § 3001(3). [73] 43 C.F.R. § 10.1(b)(3). [74] United States v. Tidwell, 191 F.3d 976 (9th Cir. 1999); United States v. Corrow, 119 F.3d 796 (10th Cir. 1997). [75] Kelly E. Yasaitis, NAGPRA: A Look Back Through the Litigation, 25 J. Land Resources & Envtl. L. 259, 285 (2005) (citing State v. Medicine Bird Black Bear White Eagle, 63 S.W.3d 734, 752-53 (Tenn. Ct. App. 2001)). [76] 25 U.S.C. §§ 2901-2906 (1990). [77] James Fife, The Legal Framework for Indigenous Language Rights in the United States, 41 Willamette L. Rev. 325, 331 (2005). [78] James Fife, The Legal Framework for Indigenous Language Rights in the United States, 41 Willamette L. Rev. 325, 331-32 (2005). [79] James Fife, The Legal Framework for Indigenous Language Rights in the United States, 41 Willamette L. Rev. 325, 331-32 (2005). [80] Meyer v. Nebraska, 262 U.S. 390, 390 (1923). [81] Meyer, 262 U.S. at 403. [82] Meyer, 262 U.S. at 403. [83] James Fife, The Legal Framework for Indigenous Language Rights in the United States, 41 Willamette L. Rev. 325, 332-44 (2005). [84] James Fife, The Legal Framework for Indigenous Language Rights in the United States, 41 Willamette L. Rev. 325, 366 (2005) (citing Treaty with the Western Cherokee, May 6, 1828, art. 5, 7 Stat. 311). [85] Allison M. Dussias, Indigenous Languages Under Siege, 3 Intercultural Hum. Rts. L. Rev. 5, 22 (2008). [86] Allison M. Dussias, Indigenous Languages Under Siege, 3 Intercultural Hum. Rts. L. Rev. 5, 23 (2008). [87] Allison M. Dussias, Indigenous Languages Under Siege, 3 Intercultural Hum. Rts. L. Rev. 5, 23 (2008). [88] 42 U.S.C. § 2991a. [89] Kristen Carpenter & Alexey Tsykarev, (Indigenous) Language as a Human Right, 24 UCLA J. Int'l L. & Foreign Aff. 49, 77 (2020). [90] Office of Hawai"ian Affairs v. Department of Educ., 951 F.Supp. 1484 (D. Hawai'i 1996); compare Doe v. Kamehameha Schools/Bernice Pauahi Bishop Estate, 470 F.3d 827 (9th Cir. 2006) (permitting exclusion of non-Native Hawaiians from private school enrollment). [91] Allison M. Dussias, Indigenous Languages Under Siege, 3 Intercultural Hum. Rts. L. Rev. 5, 49 (2008) (citing Public Law No. 108-394). [92] 20 U.S.C.A. § 7453; 20 U.S.C.A. § 7492. [93] 20 U.S.C.A. § 7453. [94] 42 USCA § 2991b-3. [95] 42 USCA § 2991b-3. [96] Indian Affairs Announces Funding for Living Languages Grants, U.S. Department of the Interior, Dec. 3, 2021, https://www.bia.gov/news/indian-affairs-announces-funding-living-languages-grants. [97] 17 Guam Code §§ 8101 (2019). [98] 17 Guam Code §§ 8103 (2019) (https://law.justia.com/codes/guam/2019/title-17/division-2/chapter-8/). [99] Haw. Const. art. XV, § 4. [100] Lisa Kaczke, South Dakota recognizes official indigenous language, ArgusLeader (March 22, 2019), https://www.argusleader.com/story/news/politics/2019/03/22/south-dakota-recognizes-official-indigenous-language-governor-noem/3245113002/. [101] U.S. English, Official English Laws (2020), https://www.usenglish.org/us-states-official-english-laws/. [102] Id. [103] Id. [104]Art. 13, United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), GA Res. 61/295, 13 September 2007. [105] Robert F. Weber, Individual Rights and Group Rights in the European Community’s Approach to Minority Languages, 17 Duke J. Comp. & Int'l L. 361, 361 (2007) [106]Summer Kupau, Judicial Enforcement of “Official” Indigenous Languages: A Comparative Analysis of the Maori and Hawaiian Struggles for Cultural Rights, 26 U. Haw. L. Rev. 495, 499 (2004). [107]Summer Kupau, Judicial Enforcement of “Official” Indigenous Languages: A Comparative Analysis of the Maori and Hawaiian Struggles for Cultural Rights, 26 U. Haw. L. Rev. 495, 499 (2004). [108]Summer Kupau, Judicial Enforcement of “Official” Indigenous Languages: A Comparative Analysis of the Maori and Hawaiian Struggles for Cultural Rights, 26 U. Haw. L. Rev. 495, 503 (2004). [109]Summer Kupau, Judicial Enforcement of “Official” Indigenous Languages: A Comparative Analysis of the Maori and Hawaiian Struggles for Cultural Rights, 26 U. Haw. L. Rev. 495, 505-506 (2004). [110]Summer Kupau, Judicial Enforcement of “Official” Indigenous Languages: A Comparative Analysis of the Maori and Hawaiian Struggles for Cultural Rights, 26 U. Haw. L. Rev. 495, 511 (2004). [111]Summer Kupau, Judicial Enforcement of “Official” Indigenous Languages: A Comparative Analysis of the Maori and Hawaiian Struggles for Cultural Rights, 26 U. Haw. L. Rev. 495, 513-14 (2004). [112]Summer Kupau, Judicial Enforcement of “Official” Indigenous Languages: A Comparative Analysis of the Maori and Hawaiian Struggles for Cultural Rights, 26 U. Haw. L. Rev. 495, 499 (2004). [113]Summer Kupau, Judicial Enforcement of “Official” Indigenous Languages: A Comparative Analysis of the Maori and Hawaiian Struggles for Cultural Rights, 26 U. Haw. L. Rev. 495, 514 (2004). [114]Rangi Nicholson, Marketing the Maori Language, Northern Arizona University, (2003), https://jan.ucc.nau.edu/~jar/TIL_16.html. [115] James Fife, The Legal Framework for Indigenous Language Rights in the United States, 41 Willamette L. Rev. 325, 326 (2005). [116] James Fife, The Legal Framework for Indigenous Language Rights in the United States, 41 Willamette L. Rev. 325, 325 (2005). [117]Emma Hartley, Sami desire for truth and reconciliation process, Politico, (Jan. 10, 2016), https://www.politico.eu/article/sami-reconciliation-process-sweden-minority-multiculturalism-human-rights-discrimination/. [118] Fife, supra, note 1, at 326. [119] Jean-François Dupré, Culture politics and linguistic recognition in Taiwan: ethnicity, national identity, and the party system 88-89 (2017). [120] Jean-François Dupré, Culture politics and linguistic recognition in Taiwan: ethnicity, national identity, and the party system 89 (2017). [121] Jean-François Dupré, Culture politics and linguistic recognition in Taiwan: ethnicity, national identity, and the party system 90 (2017). [122] Jean-François Dupré, Culture politics and linguistic recognition in Taiwan: ethnicity, national identity, and the party system 90 (2017). [123] Julie Chi-hye Suk, Economic Opportunities and the Protection of Minority Languages, 1 Law & Ethics Hum. Rts. 134, 135 (2007). [124] Hannah Stambaugh, America’s Quiet Legacy of Native American Voter Disenfranchisement: Prospects for Change in North Dakota After Brakebill v. Jaeger, 69 Am. U. L. Rev.295, 300 (2019). [125] Hannah Stambaugh, America’s Quiet Legacy of Native American Voter Disenfranchisement: Prospects for Change in North Dakota After Brakebill v. Jaeger, 69 Am. U. L. Rev. 295, 300 (2019); Elk v. Wilkins, 112 U.S. 94 (1884). [126] Hannah Stambaugh, America’s Quiet Legacy of Native American Voter Disenfranchisement: Prospects for Change in North Dakota After Brakebill v. Jaeger, 69 Am. U. L. Rev. 295, 301 (2019). [127] Hannah Stambaugh, America’s Quiet Legacy of Native American Voter Disenfranchisement: Prospects for Change in North Dakota After Brakebill v. Jaeger, 69 Am. U. L. Rev. 295, 302 (2019). [128] Shelby Cty. v. Holder, 570 U.S. 529, 557 (2013). [129] Hannah Stambaugh, America’s Quiet Legacy of Native American Voter Disenfranchisement: Prospects for Change in North Dakota After Brakebill v. Jaeger, 69 Am. U. L. Rev. 295, 305 (2019). [130] Hannah Stambaugh, America’s Quiet Legacy of Native American Voter Disenfranchisement: Prospects for Change in North Dakota After Brakebill v. Jaeger, 69 Am. U. L. Rev. 295, 305 (2019). [131] Hannah Stambaugh, America’s Quiet Legacy of Native American Voter Disenfranchisement: Prospects for Change in North Dakota After Brakebill v. Jaeger, 69 Am. U. L. Rev. 295, 305 (2019). [132] Hannah Stambaugh, America’s Quiet Legacy of Native American Voter Disenfranchisement: Prospects for Change in North Dakota After Brakebill v. Jaeger, 69 Am. U. L. Rev. 295, 309 (2019) (citing Brief of Amici Curiae for Navajo Nation, et al. in Support of Respondents and Respondent-Intervenors at 26, Shelby Cty. v. Holder, 133. S. Ct. 2612 (2013) (No. 12-96)). [133] Hannah Stambaugh, America’s Quiet Legacy of Native American Voter Disenfranchisement: Prospects for Change in North Dakota After Brakebill v. Jaeger, 69 Am. U. L. Rev. 295, 309 (2019). [134] Hannah Stambaugh, America’s Quiet Legacy of Native American Voter Disenfranchisement: Prospects for Change in North Dakota After Brakebill v. Jaeger, 69 Am. U. L. Rev.295, 319 (2019). [135] Hannah Stambaugh, America’s Quiet Legacy of Native American Voter Disenfranchisement: Prospects for Change in North Dakota After Brakebill v. Jaeger, 69 Am. U. L. Rev. 295, 319 (2019). [136] Felicia Fonseca, Navajo Nation loosens language requirements for top leaders, AZCentral (Jul. 21, 2015), https://www.azcentral.com/story/news/arizona/politics/2015/07/21/navajo-nation-loosens-language-requirements--top-leaders/30499807/. [137] Felicia Fonseca, Navajo Nation loosens language requirements for top leaders, AZCentral (Jul. 21, 2015), https://www.azcentral.com/story/news/arizona/politics/2015/07/21/navajo-nation-loosens-language-requirements--top-leaders/30499807/. [138] Felicia Fonseca, Navajo Nation loosens language requirements for top leaders, AZCentral (Jul. 21, 2015), https://www.azcentral.com/story/news/arizona/politics/2015/07/21/navajo-nation-loosens-language-requirements--top-leaders/30499807/. [139]Joe Whittle, Most Native Americans live in cities, not reservations. Here are their stories, The Guardian, (Sep. 4, 2017), https://www.theguardian.com/us-news/2017/sep/04/native-americans-stories-california. [140] Lorie M. Graham, A Right to Media?, 41 Colum. Hum. Rts. L. Rev. 429, 474 (2010). [141] Lorie M. Graham, A Right to Media?, 41 Colum. Hum. Rts. L. Rev. 429, 474 (2010). [142] Lorie M. Graham, A Right to Media?, 41 Colum. Hum. Rts. L. Rev. 429, 474 (2010). [143] Lorie M. Graham, A Right to Media?, 41 Colum. Hum. Rts. L. Rev. 429, 474 (2010). [144] Lorie M. Graham, A Right to Media?, 41 Colum. Hum. Rts. L. Rev. 429, 476 (2010). [145] Daniel J. Adam, Tribal Telecom: Telecommunications Regulation in Indian Country, 27 J. Legis. 153, 154 (2001). [146] John C. Miller & Christopher P. Guzelian, A Spectrum Revolution: Deploying Ultrawideband Technology on Native American Lands, 11 CommLaw Conspectus 277, 278 (2003). [147] Daniel J. Adam, Tribal Telecom: Telecommunications Regulation in Indian Country, 27 J. Legis. 153, 162 (2001). [148] Leonard M. Baynes, Deregulatory Injustice and Electronic Redlining: The Color of Access to Telecommunications, 56 Admin. L. Rev. 263, 293-94 (2004). [149] Office of Native Affairs and Policy, FCC, About the Office (Nov. 4, 2021), https://www.fcc.gov/office-native-affairs-and-policy. [150] Improving and Increasing Broadband Deployment on Tribal Lands, FCC Native Nations Communications Task Force 14 (Nov. 5, 2019), https://www.fcc.gov/sites/default/files/nnctf_tribal_broadband_report.pdf (explaining that only eighteen tribes held spectrum licenses in 2019). [151] Improving and Increasing Broadband Deployment on Tribal Lands, FCC Native Nations Communications Task Force (Nov. 5, 2019), https://www.fcc.gov/sites/default/files/nnctf_tribal_broadband_report.pdf. [152] Improving and Increasing Broadband Deployment on Tribal Lands, FCC Native Nations Communications Task Force 6 (Nov. 5, 2019), https://www.fcc.gov/sites/default/files/nnctf_tribal_broadband_report.pdf. [153] Improving and Increasing Broadband Deployment on Tribal Lands, FCC Native Nations Communications Task Force 9 (Nov. 5, 2019), https://www.fcc.gov/sites/default/files/nnctf_tribal_broadband_report.pdf. [154] Improving and Increasing Broadband Deployment on Tribal Lands, FCC Native Nations Communications Task Force 11 (Nov. 5, 2019), https://www.fcc.gov/sites/default/files/nnctf_tribal_broadband_report.pdf. [155] Improving and Increasing Broadband Deployment on Tribal Lands, FCC Native Nations Communications Task Force 14 (Nov. 5, 2019), https://www.fcc.gov/sites/default/files/nnctf_tribal_broadband_report.pdf. [156] Improving and Increasing Broadband Deployment on Tribal Lands, FCC Native Nations Communications Task Force 15 (Nov. 5, 2019), https://www.fcc.gov/sites/default/files/nnctf_tribal_broadband_report.pdf. [157] Improving and Increasing Broadband Deployment on Tribal Lands, FCC Native Nations Communications Task Force 19 (Nov. 5, 2019), https://www.fcc.gov/sites/default/files/nnctf_tribal_broadband_report.pdf. [158] Improving and Increasing Broadband Deployment on Tribal Lands, FCC Native Nations Communications Task Force 22 (Nov. 5, 2019), https://www.fcc.gov/sites/default/files/nnctf_tribal_broadband_report.pdf. [159] Improving and Increasing Broadband Deployment on Tribal Lands, FCC Native Nations Communications Task Force 29 (Nov. 5, 2019), https://www.fcc.gov/sites/default/files/nnctf_tribal_broadband_report.pdf. [160]Frank Vaisvilas, Wisconsin's first Indigenous language road signs are unveiled at Red Cliff, marking 'an historic day’, Green Bay Press Gazette, (Nov. 9, 2021), https://www.greenbaypressgazette.com/story/news/native-american-issues/2021/11/09/wisconsin-installs-indigenous-language-road-signs-red-cliff/6345135001/. [161]Kathleen McQuillan-Hofmann, Enweyang Ojibwe Language Nest, University of Minnesota Duluth, (2015), https://web.archive.org/web/20150906181515/http://www.d.umn.edu/external-affairs/homepage/10/languagenest.html. [162]North Dakota colleges collaborate to preserve tribal language, culture, (Oct. 18, 2021), https://www.newscenter1.tv/north-dakota-colleges-collaborate-to-preserve-tribal-language-culture/. [163]Rachel Hatzipanagos, How Native Americans launched successful coronavirus vaccination drives: ‘A story of resilience’, Washington Post, (May 6, 2021), https://www.washingtonpost.com/nation/2021/05/26/how-native-americans-launched-successful-coronavirus-vaccination-drives-story-resilience/. [164]Morton v. Mancari, 417 U.S. 535, 554 (1974). [165]English and Civics Testing, U.S. Citizenship and Immigration Services, (Jan. 13, 2022), https://www.uscis.gov/policy-manual/volume-12-part-e-chapter-2. [166]Allison M. Dussias, Indigenous Languages Under Siege, 3 Intercultural Hum. Rts. L. Rev. 5, 6 (2008 [167]See generally Courtney Hodge, Is the Indian Child Welfare Act Losing Steam?: Narrowing Non-Custodial Parental Rights After Adoptive Couple v. Baby Girl, 7 Colum. J. Race & L. 191, 202 (2016). [168] Learning Navajo language helps students connect to their culture, ASU, (Apr. 17, 2014), https://news.asu.edu/content/learning-navajo-language-helps-students-connect-their-culture. [169] Evan L. Seite, Language Legislation in Iowa: Lessons Learned from the Enactment and Application of the Iowa English Language Reaffirmation Act, 95 Iowa L. Rev. 1369, 1373 (2010). [170] Evan L. Seite, Language Legislation in Iowa: Lessons Learned from the Enactment and Application of the Iowa English Language Reaffirmation Act, 95 Iowa L. Rev. 1369, 1373 (2010). [171] David Jung et al., A Local Official’s Guide to Language Access Policies, 10 Hastings Race & Poverty L. J. 31, (2013) (citing Guadalupe Org. Inc. v. Tempe Elementary School Dist. No. 3, 587 F.2d 1022, 1027 (9th Cir. 1978) (holding there is no constitutional right to bilingual education); and citing Carmona v. Sheffield, 475 F.2d 738, 739 (9th Cir. 1973) (holding no constitutional right to foreign language employment notices)). [172] 65 FR 50121, Exec. Order No. 13166, 2000 WL 34508183(Pres.) [173] David Jung et al., A Local Official’s Guide to Language Access Policies, 10 Hastings Race & Poverty L. J. 31, 40-45 (2013). [174] David Jung et al., A Local Official’s Guide to Language Access Policies, 10 Hastings Race & Poverty L. J. 31, 46 (2013). [175] David Jung et al., A Local Official’s Guide to Language Access Policies, 10 Hastings Race & Poverty L. J. 31, 48 (2013). [176] See David Jung et al., A Local Official’s Guide to Language Access Policies, 10 Hastings Race & Poverty L. J. 31, 48-50 (2013). Image Credit: Mason Field, Unsplash

Originally published May 23, 2022 Before the current decade is out, America will mark the centennial of federal regulation of electric utilities and natural gas. Countless innovations and social shifts have transformed the energy industry in the intervening century, perhaps most significantly the creation of the electrical grid, the extension of the world's largest system of pipelines, and the advent of market deregulation. But even bigger shifts lie ahead. Faced with the challenges of atmospheric greenhouse gas emissions and fossil fuel reliance, America must retool itself as a hydrogen economy. America is usually an early leader in new energy technologies. But its robust energy infrastructure—legislatively and physically—can create bottlenecks that stand in the way of improvements. Hydrogen promises efficiency, portability, and abundance if it can be achieved without reliance on fossil fuels. But in order to achieve that promise, energy regulations must adapt. This report will examine the development of American energy regulation, current barriers facing alternative energy technologies, and opportunities to improve existing regulatory frameworks. ORIGINS OF AMERICAN ENERGY INDUSTRY REGULATION A. The Dream of a Hydrogen Economy and the Race to Integrate Renewables Hydrogen is the simplest element, and the most abundant form of matter in the universe.[1] During the 2003 State of the Union address, President George W. Bush touted the idea of a "hydrogen economy," with cheap hydrogen and hydrogen fuel cell technology displacing fossil fuels.[2] Hydrogen is by many standards the only highly portable liquid storage medium for energy that can rival fossil fuels.[3] It is attractive for industrial, home, and transportation uses thanks to its flexibility and because it can be produced from diverse sources such as oil, natural gas, and biomass through steam reforming, but results in the lowest greenhouse gas emissions when produced through electrolysis—the splitting of water molecules—achieved with the use of electricity from renewable sources or nuclear power.[4] The combustion of hydrogen produces essentially no pollution, yielding only water and heat, thus avoiding the serious environmental risks of fossil fuels.[5] Over recent decades, interest in hydrogen was spurred by two different objectives: energy independence and decarbonization.[6] Of the two, decarbonization to reduce reliance on fossil fuels, and achieve lower greenhouse gas emissions has emerged as the leading objective.[7] Hydrogen has a variety of advantages. When used in fuel cells, it can support vehicle mobility.[8] Compared with large fixed batteries or pumped storage facilities proposed to store renewable energy when the sun is not shining and the wind is not blowing, hydrogen promises extensive storage capacity.[9] Above all, it promises a long-term energy storage medium that can be transported by pipelines, trucks, or trains, and serve flexible roles in industry and consumer use.[10] Hydrogen does face some drawbacks. The cheapest ways to produce hydrogen are with steam methane reforming and autothermal reforming, but both methods produce carbon emissions.[11] Hydrogen faces potential losses of up to forty-five percent during transfer through pipelines or conversion into electricity in fuel cells, compared with twelve percent losses through the direct production and transmission of electricity from renewable sources.[12] Additionally, hydrogen poses unique infrastructure challenges because it interacts with many steel alloys, causing metal embrittlement.[13] Early innovation around hydrogen was dogged with concerns about safety and liability, because hydrogen is explosive.[14] However, concerns about hydrogen's combustible characteristics may be overblown, because it emits only one-tenth the radiative heat of a hydrocarbon fire.[15] Although hydrogen has faced some potential products liability barriers, that has not prevented California from introducing hydrogen fueling stations.[16] Hydrogen technology faces the incumbency of fossil fuel technology, which remains economical and well-established throughout the world, as well as government policies promoting battery technology in lieu of hydrogen. The federal government and some state governments are promoting electric vehicles (EV) as an alternative to gasoline, diesel, and hydrogen cars to curb greenhouse gas emissions from transportation. But the addition of EVs is placing new strains on the electrical grid.[17] A typical EV needs thirty kilowatt hours of electricity to go 100 miles, equaling the average consumption of all appliances in a typical American home. Mass electrification of road transport would increase the nation's electricity demand by upwards of thirty-eight percent, prompting surging demand in some states with limited capacity, such as Maine which would need to expand its electrical resources by fifty-five percent.[18] In some states like California, the grid has capacity for EVs, but may not be well calibrated to handle sudden surges in demand. [19] Electric utilities have emerged as major promoters of EVs, viewing the technology as a way to gin up substantial demand for electricity and grow revenues. In 2018, for instance, ten utilities sued the Trump administration, opposing plans to make greenhouse gas standards more lenient.[20] In some cases, EVs are also considered from a technical, rather than financial or environmental perspective. Vehicle-to-grid, also known as V2G technology would allow cars to charge during daylight hours, as a way to store electricity generated from renewable sources.[21] Ultimately, batteries provide only limited energy storage capability compared with hydrogen.[22] Electricity alone from batteries or the grid is also ill-suited for applications like aviation or heavy industry. Therefore, a battery-based renewable energy future is unlikely to succeed, leaving hydrogen technology as the only viable alternative to fossil fuels. B. The Advent of the Electrical Grid and Pipelines The electrical grid and natural gas pipelines are both critical pieces of infrastructure for a hydrogen economy, supplying the electricity needed for electrolysis, and potentially transporting gaseous hydrogen—or natural gas feedstock. Energy regulation in the US involves dual-federalism, with the Federal Energy Regulatory Commission overseeing the electrical grid and interstate natural gas pipelines, and state public utility commissions controlling many elements of power production intrastate.[23] The Nuclear Regulatory Commission, for its part, oversees the licensing and monitoring of nuclear power plants.[24] Federal regulation is largely preeminent and in some spheres preempts state energy laws—a state of affairs that has existed since the early 20th century. The Supreme Court pointed the way to federal regulation of electric power in its 1927 Public Utilities Commission v. Attleboro Steam and Electric Co. decision. [25] "It is conceded, rightly, that the sale of electric current by the Narragansett Company to the Attleboro Company is a transaction in interstate commerce, notwithstanding the fact that the current is delivered at the state line. The transmission of electric current from one state to another, like that of gas, is interstate commerce," indicated Justice Sanford, writing for the majority.[26] The case produced the so-called "Attleboro gap," with the Court indicating that the Commerce Clause prevented one state from regulating the rate charged by utility for sales of power to a utility in another state.[27] As a result, states could not directly regulate bulk sales of electricity with other states, and neither could the federal government without enabling legislation under the Commerce Clause.[28] Responding to the gap, the New Deal era Congress enacted the Federal Power Act of 1935, expanding the preexisting 1920 Federal Water Power Act.[29] The proto-Keynesian regulatory bent of the Roosevelt administration promoted the creation of established monopolies and oligopolies to prevent what was viewed as dangerous competition. At virtually the same time as the Federal Power Act broadened the scope of authority granted to the Federal Power Commission, Congress also enacted the Public Utility Holding Company Act of 1935 (PUHCA), mandating that utilities above a certain size register with the Securities and Exchange Commission.[30] After electrical utilities, regulation of natural gas soon followed. Throughout the 1930s, municipalities remained concerned about the monopolization of natural gas. Seeking to forestall common carrier requirements, natural gas companies sought regulation from the federal government, culminating in the passage of the Natural Gas Act of 1938.[31] At the start of World War II, the East Coast remained reliant on coastal transport of oil, or production of natural gas from coal at gasification plants. A total of fifty-five tankers were lost along the coast to Nazi submarines. Even before the U.S. entry into the war, two natural gas companies were trying to expand pipelines into the Southeast, but struggled with the lack of an eminent domain law in Georgia. Exploiting wartime conditions, Congress passed the short-lived Cole Act granting eminent domain powers for pipeline projects between 1941 and 1943.[32] At war's end, the Texas Eastern Transmission Co. tried to repurpose the so-called "Inch Lines" to the Northeast for civilian uses, but faced pushback from state governments with entrenched coal interests. Natural gas had proven integral to powering many factories during the war, and crippling natural gas shortages in 1946 and 1947 spurred 50,000 layoffs when factories shut down. Congress passed eminent domain powers for natural gas pipelines in 1947.[33] Electricity and natural gas had become heavily regulated through the dual-federalism of the federal government and states, but a powerful set of federal laws meant that vertically integrated developers could readily extend electrical transmission lines and natural gas pipelines across state lines. C. Market Deregulation for Electricity and Natural Gas Although energy remains comparatively heavily regulated, contemporary efforts to create a hydrogen economy now take place in a fundamentally different regulatory framework than that which existed between the 1930s and the early 1980s. Following more than twenty years of relative steady state in the electricity and natural gas industries as the American electrical grid and natural gas infrastructure grew extensively, the 1970s brought a change in tenor from federal regulators. The Supreme Court set the stage for deregulation of utilities in its 1973 Otter Tail Power Co. v. U.S. decision.[34] "There is nothing in the legislative history which reveals a purpose to insulate electric power companies from the operation of the antitrust laws," observed Justice Douglas, writing for the Court. [35] Otter Tail, a northern Midwest utility refused to wheel power to municipalities at the cheaper rates offered by the Bureau of Reclamation, but was compelled to by the Court.[36] The Federal Power Commission, renamed during the 1970s as the Federal Energy Regulatory Commission (FERC), took advantage of the 1978 Public Utility Regulatory Policy Act to order wheeling of electricity from small generators. FERC shifted away from price regulation of individual firms, particularly with the advent of independent power generators in the 1980s.[37] Significantly, states were encouraged to shift away from block ratemaking to marginal cost pricing.[38] Local utilities, too, needed to connect to co-generators or small producers, purchasing electricity at "full avoided cost." [39] Big developments followed with the Energy Policy Act of 1992, which granted FERC power to order companies that owned transmission to wheel power wholesale.[40] Between 1996 and 2000, FERC issued three significant orders to prevent monopoly control of transmission lines.[41] The most famous of the three, Order 888, requires electric utilities engaged in interstate commerce to file non-discriminatory tariffs, treating transmission and generating as different even if done by the same company through a process dubbed "functional unbundling." Order 888 was upheld in the courts in 2002, allowing the deregulatory process to carry on.[42] Natural gas regulation underwent a similar significant change over virtually the same time period. In 1985, FERC began encouraging pipeline companies to provide open-access in exchange for easier project approval with Order 436.[43] Order 636 in 1992 made this a requirement.[44] FERC subsequently unbundled pipelines, separating pipelines from the gas production business, and kept only limited jurisdiction to review the price of natural gas sold across state lines.[45] These parallel deregulations culminated in the two energy markets being closely linked, yet electricity and natural gas operated on different schedules.[46] "Thus, when natural gas-fired electricity plants bid into a regional transmission organization (RTO) or Independent System Operation (ISO) auction indicating that they can provide a certain amount of electricity at a certain price, it can be difficult for these generators to properly formulate their bid when they do not know exactly how much gas they will have available to them at a particular price."[47] FERC rectified this with Order 809 in 2015, aligning timetables for both sectors.[48] Deregulation has fundamentally changed the ways that electricity and natural gas are delivered to end customers, but deregulation is not universal within these sectors of the energy industry. In parallel with market deregulation, utilities now contend with Renewable Portfolio Standards, and associated renewable energy credits (REC) introduced by over half of states since the 1990s.[49] A typical approach requires a utility to get RECs for a portion of power generation from renewable sources like solar, wind, hydropower, or biomass; RECs may be coupled with a state clean energy target, and may or may not allow nuclear and natural gas to count.[50] Independent System Operators (ISO) and Regional Transmission Operators (RTO) have faced some challenges incorporating renewables.[51] Renewables, apart from nuclear, natural gas, and biomass, tend to be available independent of demand, thus forcing grid operators to curtail renewable inputs at certain times to sustain the grid.[52] II. FROM LEGAL BARRIERS TO LEGAL SOLUTIONS: ACHIEVING A HYDROGEN ECONOMY Continued innovation in the energy sector may one day yield high-efficiency, rapid recharge batteries that can store massive amounts of energy. At the current level of innovation, batteries are unreliable. Even if future innovations result in greater efficiency, liquid fuel or gas energy storage will likely promise greater storage and portability in the long-run.[53] With present technology, decarbonization of the economy cannot be achieved easily without a switch to hydrogen. In spite of acknowledged drawbacks like the explosiveness of hydrogen and metal embrittlement, a "hydrogen economy" holds greater promise than batteries, with the potential to apply to use cases as divergent as aviation and heavy industry. Therefore, policymakers should strive to support private sector innovation in this area. To achieve a hydrogen transition, careful analysis of existing laws is needed. The most environmentally friendly production of hydrogen would involve nuclear, solar, wind, and geothermal.[54] Among fossil fuel sources, steam reformation of natural gas to produce hydrogen produces the fewest emissions and hydrogen can also be transported within pipelines in a blend, thereby reducing overall emissions where the gas is combusted, much like the inclusion of ethanol in gasoline.[55] Barriers to renewable energy infrastructure commonly include problems with too many decisionmakers, and by extension too much veto power over projects. Nuclear power and wind likely face the greatest public opposition, with far less opposition to solar and geothermal. Nonetheless, even solar and geothermal technologies face some barriers of their own, such as regulatory confusion about whether geothermal resources are a mineral right or a water right, with implications for development. Considering these factors, policymakers need to understand existing legal barriers to nuclear power, solar, wind, geothermal, natural gas distribution systems, and within the electrical transmission industry. Many reforms can be accomplished at the state level, but in rare circumstances surrounding nuclear power and offshore, enhanced federal preemption may be needed to achieve the potential of these technologies. A. Nuclear 1. Barriers to Nuclear Power Fears of nuclear reactor meltdowns and the safety of spent nuclear fuel are key concerns that motivate anti-nuclear sentiment among sections of the general public, as well as state and local governments.[56] Among alternative energy sources, nuclear power is uniquely bound up with administrative law, agency deference, and federal preemption. Nuclear power in the US is a regulated industry under the aegis of the Nuclear Regulatory Commission (NRC).[57] Implementing the National Environmental Policy Act (NEPA), NRC requires Environmental Impact Statements (EIS) as part of a Combined License Application (COL) and publishes permit and work authorization requests in the Federal Register.[58] During the 1960s and 1970s, nuclear power was strongly favored by the federal government.[59] The Price-Anderson Act capped the liability for nuclear accidents at $560 million to encourage development.[60] The Supreme Court and circuit courts drew the bounds of federal preemption in several nuclear energy cases during the 1970s and early 1980s. At the high ebb of nuclear power in 1971, the Eighth Circuit held that federal law fully preempted state regulation over radioactive waste releases.[61] However, ebullience about nuclear power faded in the late 1970s and by the 1980s nuclear power plant construction ground to a halt. This shift can be traced to a variety of events. The nuclear accident at Three Mile Island in 1979 harmed public confidence and resulted in a wave of project cancellations.[62] At the same time, electricity demand began to fall, the newly created Department of Energy signaled changes to reactor design, and the industry faced extensive cost overruns.[63] Additionally, in 1983, the Supreme Court held that states retain traditional responsibilities related to the regulation around electrical utilities such as determining market need, reliability, and costs, effectively allowing states to set high regulatory barriers on the construction of nuclear power plants.[64] Although NRC has exclusive jurisdiction over uranium enrichment facilities, nuclear imports and exports, and sea disposal of nuclear waste, NRC may enter into agreements with state governments about nuclear materials.[65] States may regulate the siting of nuclear facilities on economic rather than safety grounds and may ban uranium mining, because uranium mining is the only part of the nuclear fuel lifecycle not mentioned in the Atomic Energy Act.[66] Even as new nuclear power plant projects stalled after the 1970s, the federal government took steps to promote nuclear energy. This has included Early Site Permits and Standard Design Certifications, fifty-fifty cost sharing arrangements, new tax credits, loan guarantees, and insurance subsidization.[67] Nonetheless, nuclear power plant construction has not recovered, except for a few new reactors licensed in the South in the late 2000s.[68] The prevailing uncertainty brought on by regulatory changes in the early 1980s has chilled the entire nuclear market for decades. 2. Improving the Outlook for Nuclear Power Nuclear power and natural gas are two of the most important elements of redundancy in the electrical grid. If nuclear power is replaced with intermittent wind, solar, and natural gas, greenhouse gas emissions rise—a pattern seen in California, Wisconsin, New England, and Florida after nuclear power plants closed in each location.[69] A strategy to enhance nuclear capacity may be to conduct new first-round operating license applications for modern reactors at the same location as existing plants as in the 2009 licenses issued in Georgia and Tennessee. A study of NGOs organizing against power projects found that only eight percent of antinuclear NGOs organized protests when projects were situated next to existing plants in areas already accustomed to nuclear power plants.[70] Several times throughout recent decades, energy market participants have faced substantial stranded costs and engaged in costly lobbying efforts to recover these costs after the fact.[71] Congress attempted to address high fixed costs and regulatory uncertainty around nuclear power with the Energy Policy Act of 2005, providing a production tax credit for nuclear power plants.[72] However, the tax credit did not apply to applicants filing after 2008 and reduced in value over time.[73] Viewed through a tax policy lens, Congress could adjust this tax credit under § 45J, remove application cut-off deadlines, adjust the credit for inflation, and remove any megawatt limitations.[74] For a time, the Department of Energy maintained its Modified Accelerated Cost Recovery System, allowing renewable projects in service before January 1, 2018 to receive 50% first-year bonus depreciation.[75] Generous depreciation up-front, together with continued Price-Anderson liability caps, and full preemption of states in nuclear power plant approval would all benefit nuclear power as the redundant element in a hydrogen economy. B. Solar 1. Barriers to Solar Solar energy vies with wind as one of the most famous renewable energy sources, and apart from geothermal, might be one of the least controversial. It is also among the most distributed, because photovoltaic (PV) panels can be installed at houses and businesses far more cost effectively than wind or geothermal.[76] In an effort to promote solar, states have passed solar access laws together with other laws aimed at promoting solar energy.[77] Such laws create negative easements, so that neighboring properties cannot block sunlight to a particular property.[78] Most solar permitting is administered at the local level in the US, but this is often accompanied with complex filings and high costs. Some pro-solar city governments have developed over the counter permit purchases or made it illegal to forbid photovoltaic panels in historic districts.[79] Solar has minimal entanglements with environmental law. Some solar components may fall under Resource Conservation and Recovery Act (RCRA) hazardous waste regulations.[80] Solar projects have been inextricably linked with federal investment tax credits, because solar is not always cost-effective without these supports. The industry was concerned about the expiration of credits in 2016, but Congress passed a renewal, and did so again in 2021, forestalling any changes to the present economics of photovaltaics.[81] 2. Improving the Outlook for Solar RCRA concerns are likely too de minimus to merit any regulatory streamlining. There is no clear link between rates of solar growth and tax credit thresholds, which suggests that tax credits are neutral, or even of low relevance to solar projects.[82] As solar becomes more mainstream and competitive in the market, it is probably best to wind down tax credits, although continuing such measures until solar reaches some defined proportion of generation may be appropriate. Solar is inherently cyclical throughout the day and unreliable like no other form of renewable energy, save for wind. However, it differs from wind because it is even more distributed. Solar panels are easy to install on buildings and are cheaper to install on a large scale than wind turbines. As a result, it is a popular choice among homeowners seeking more resilient power. However, homeowners often misconceive of solar panels as a way to operate independent of the grid, but in most cases this is not feasible so long as a house is integrated with the wider grid. Currently, customers with solar panels who are integrated with the grid cannot power their homes during a blackout.[83] Simultaneously, solar adds unreliability into the grid, heightening the risk of power surges or brownouts because sunlight tends to be unpredictable. A resiliency approach in regulation is needed. In jurisdictions with interconnect requirements, this might allow utilities to limit interconnects to only solar customers with "smart" systems capable of responding to changes in grid demand.[84] It might also mean permitting microgrids and developing safeguards. For instance, Arizona regulators have adopted a system of inverters to put waste electricity into the ground during times of oversupply.[85] C. Wind 1. Barriers to Wind Wind is an abundant resource but requires extensive and costly infrastructure to generate large amounts of electricity. Since the 1980s, wind turbines have proliferated both onshore and offshore, as wind technology has become less expensive—and as governments have subsidized the installation of turbines. Offshore waters in the European Union have hosted vast wind farms for over two decades, financed by European governments.[86] Meanwhile, the US offshore wind has lagged behind due to fewer supports and a complicated regulatory landscape. December 12, 2016 marked an important milestone with the inauguration of the Block Island Wind Project off the coast of Rhode Island.[87] Offshore wind developers face significant regulatory and cost hurdles, acquiring offshore continental shelf (OCS) leases through an initial bid or subsequent assignment, securing rights of way for cables offshore and at connection points on the coast, and then installing expensive towers and turbines at sea.[88] Offshore wind projects have bogged down in litigation, most famously Cape Wind in Massachusetts which stalled for nearly two decades in the courts.[89] At the time the project began, there was no federal permitting process for offshore wind, and the developers approached the Army Corps of Engineers for approval.[90] Bureau of Ocean Energy Management (BOEM) received permitting jurisdiction after the passage of the Energy Policy Act of 2005.[91] In spite of approval by the Massachusetts State Energy Siting Facilities Board and support from Obama-era Interior Secretary Ken Salazar, litigation-related delays halted the project and prompted the state's two largest utilities to back out of power purchase contracts.[92] By contrast, Maine provided a streamlined regulatory process as well as a statutory requirement that the Maine Public Utilities Commission acquire 25 MW of offshore power through a competitive power purchase agreement.[93] However, when Republican Larry LePage took over as governor from his Democratic predecessor, he ensured that the Maine legislature reconsidered the statute and issue a new request for proposals—Statoil, the offshore investor, backed out.[94] Offshore wind is even more complicated in the Great Lakes.[95] States like Michigan and Wisconsin have massive wind energy potential, but at the beginning of the 2020s, Ohio's Icebreaker Wind Project was the only major development in the lakes.[96] States control offshore lands in the Great Lakes, but with significant involvement by federal stakeholders. Developers in Michigan offshore lands, for instance, need to contend with both the Michigan Department of Environmental Quality and the Army Corps of Engineers under the Great Lakes Submerged Lands Act.[97] Because of the challenges of leasing offshore lands, some wind energy developers have increasingly turned to the idea of floating platforms.[98] Principle Power, in 2013, launched the first floating wind energy project in the nation in Coos Bay, Oregon, but failed to secure a power purchase agreement needed for Department of Energy financing.[99] Oregon faced unique geographic constraints because most of the state's population is centered in the Willamette Valley, and therefore transmission facilities over the Coast Range are limited.[100] Besides these transmission barriers, one analysis highlighted reasons for lack of offshore wind development in Oregon including: (1) a lower renewable power sourcing target than some Eastern states, (2) a five year, rather than three year REC creating less pressure for developments, (3) ad hoc mandates for utilities to buy power, and (4) need for additional state tax incentives.[101] The Coastal Zone Management Act (CZMA) incorporates a notion of "federal-state collaboration," that allows states with a coastal zone management plan approved by the Department of Commerce to review offshore leasing by BOEM.[102] Although the Department of Commerce can override state complaints, the CZMA introduces another potential avenue to slow down offshore wind projects.[103] Onshore wind has made more headway compared with offshore installations, because it does not face the same challenges with receiving offshore federal permitting, and placing power lines through coastal areas under the protection of the CZMA. However, onshore projects have still faced periodic opposition from environmental groups on Endangered Species Act grounds, due to concerns that spinning turbine blades will harm endemic flying species.[104] In other cases, groups have brought nuisance claims in courts, founded on noise and wind turbines as eyesores.[105] Much like offshore wind, the greatest challenges for onshore wind projects often arise at the state level from siting controls. Under Governor Deval Patrick, Massachusetts coupled the Global Warming Solutions Act of 2008 with the creation of the Advisory Energy Facilities Siting Commission.[106] A consulting report commissioned by the state indicated that challenges remained in the form of a megawatt generating requirement for a project to go through one-stop permitting (below a megawatt of capacity, projects needed to undergo local review), a lengthy appeals process, and options for preemption by local law.[107] By granting expedited permits only to projects with over 100 MW, Massachusetts effectively excluded most onshore wind projects.[108] Large onshore wind projects have faced similar challenges in Virginia. By the ten-year anniversary of its 2006 Energy Plan, Virginia still had only a single installed utility-scale wind power project in Botetourt County.[109] American Indian reservations, particularly those sited in the West have significant wind power potential.[110] Because tribal governments are sovereign within the federal system, they are able to bypass other state and local land use restrictions.[111] However, tribes face a number of barriers related to onshore wind development. Principally, traditional FERC regulation disincentivized the construction of power lines to remote areas like reservations and problems remain with interconnect costs and lack of infrastructure.[112] Additionally, the federal governments control of tribal lands in trust can pose a substantial barrier to development.[113] 2. Improving the Outlook for Wind Together with nuclear power, wind is one of the few cases where additional preemption may be needed. For the most part, onshore wind can and should be the domain of private landholders, local governments, and state public utility commissions. If a state wishes to limit the ease with which wind energy can be setup onshore, that is—for now—its prerogative. Plenty of Great Plains states and Texas have a combination of low population density, high winds, and an accommodating legal structure to supply wind power without Congress wading in to preempt state governments. By contrast, there is a far clearer case for additional preemption of states in the realm of offshore wind. The Cape Wind debacle suggests that there are substantial regulatory hurdles to building offshore wind projects on the continental shelf. Federal preemption might take the form of eminent domain powers for developers, borrowing the concept from the 1947 Natural Gas Act amendment. This may raise entanglements with the CZMA, and therefore policymakers will need to analyze a new offshore wind bill alongside CZMA. Federal and state lawmakers could take additional steps to promote wind development in the Great Lakes. In spite of advocacy by groups like Great Lakes Wind Council and bills introduced in 2010, Part 325 of the Great Lakes Submerged Lands Act still concerns riparian rights and dredging, rather than offshore wind development.[114] Policymakers must consider the fact that offshore wind is still a new technology, with little regulatory or development track record. Preemption may need to be a part of the toolkit, but perhaps the "not in my backyard" residents of Massachusetts are atypical. Offshore wind, particularly beyond the horizon and situated near less developed stretches of coastline may prove more straightforward. In lieu of preemption, FERC and Bureau of Ocean Energy Management regulators may be able to achieve the same results through a better means of coordinating state and federal permitting. D. Geothermal 1. Barriers to Geothermal Geothermal energy is a promising renewable technology, but one which has attracted less attention from regulators than others. The US Geological Survey estimates that with current technology, the US has over 558,000 megawatts of geothermal potential.[115] Geothermal energy is produced by extracting hot deep groundwater or injecting surface water to a depth in the ground where it will be heated to produce steam. American geothermal resources are most promising in the seismically active Western states, but many of the same states suffer from water shortages.[116] An overlap of water laws and geothermal laws can sometimes create confusion. For instance, the Ninth Circuit in 1977 concluded that based upon the legislative history of the Stock-Raising Homestead Act, geothermal resources are essentially a mineral right and not a water right.[117] In states where geothermal resources are a mineral right, developers need to get a geothermal lease or permit that confers separate rights than the control of the surface land or surface water.[118] Additionally, treating geothermal resources as mineral rights may mean that developers incur other responsibilities to prevent "waste" that might damage neighboring rights holders, or obligations similar to oil and gas wells to avoid drilling too many wells and cap abandoned wells.[119] The California Court of Appeals reached the same conclusion as the Ninth Circuit three years later in 1980, holding that deep geothermal resources constitute a type of mineral right.[120] By 2010, Nevada and Arizona distinguished geothermal water from other types of water use.[121] States like California centralize approvals for oil, gas, and geothermal projects under one agency: the California Department of Oil, Gas, and Geothermal Resources.[122] However, other states divide jurisdiction, as with Utah's division between Division of Water Rights and Board of Oil, Gas, and Mining.[123] The geology of subsurface geothermal resources is often complicated, creating potential conflicts with oil and gas leases.[124] It is technologically feasible to reuse some oil and gas wells for geothermal projects. However, state laws which govern petroleum extraction projects remain unclear on several key questions: (1) whether it would constitute waste for a lessee to comingle hydrocarbon and geothermal production, (2) whether geothermal lessees could pool into abandoned wells, and (3) whether geothermal production would damage a hydrocarbon reservoir in a way that might constitute waste.[125] In addition to varying conceptions of geothermal resources, geothermal projects must meet NEPA and state environmental protection criteria, overcome modest risks of induced seismicity (earthquakes produced by lubricating small faults with water), and occasionally National Historic Preservation Act controls.[126] 2. Improving the Outlook for Geothermal Federal and state lawmakers should clarify the status of geothermal fluids. Water injected at the surface from surface waters or near-surface groundwater would likely fall under existing water rights law. However, deep, briny fluids recovered from oil and gas projects and reinjected—or used in situ—would likely best be categorized as a mineral right. This type of distinction would prevent the misuse of scarce surface water and shallow groundwater throughout the American West. Furthermore, adopting a legal interpretation of geothermal heat (and deep hydrothermal fluids) as mineral rights would create a legal regime where geothermal developers would be more careful to avoid waste that would harm neighboring wells, thereby improving the efficiency with which these resources are used. NEPA and state equivalents create unnecessary regulatory burdens. The Bureau of Land Management signaled a commitment to regulatory streamlining in 2018, waiving the NEPA Environmental Assessment and Environmental Impact Statement requirement for oil, gas and geothermal projects.[127] E. Natural Gas & Pipeline Development 1. Barriers to Natural Gas & Pipeline Development Compared with many renewable energy sources, natural gas development faces few regulatory barriers due to a long history of federal preemption, that allows private developers to use eminent domain powers to construct pipelines. Although natural gas is non-renewable, natural gas pipeline infrastructure is relevant to a hydrogen economy because of its potential to provide feedstock for higher emission, but lower cost hydrogen, and because pipelines could be used to transport blends of hydrogen and natural gas to supply power plants, home heating, and heavy industry. Prior to its mooting during the Trump administration, the Obama administration's Clean Power Plan called for states to use natural gas-fired power plants as a bridge fuel to more renewable sources.[128] Yet in spite of such encouragements and spate of deregulations since the 1990s, natural gas still faces hurdles at the state level. [129] Even with clean energy goals, regions like New England continue to import natural gas by ship rather than by pipelines from nearby onshore sources in Pennsylvania.[130] The Natural Gas Act of 1938 (NGA) grants FERC considerable power over natural gas infrastructure, but the Energy Policy Act of 2005 contains a savings clause which means that states rights are not fully preempted under the Coastal Zone Management Act, Clean Water Act, and Clean Air Act.[131] Because federal law rather than state law usually governs, natural gas pipeline companies have been able to rapidly grow infrastructure between the 1950s and 1980s, and again during the recent shale gas boom, receiving approval, building, and putting into operation pipelines within little more than a year.[132] Nonetheless, environmental advocates are increasingly pressuring state and local governments to oppose pipeline projects, as evidenced by the opposition to Keystone XL and Dakota Access pipelines.[133] FERC is hard to influence with its more expansive control over interstate natural gas pipelines, but faces increased pressure to reject or modify natural gas pipeline projects in some states.[134] The Supreme Court weakened some of NGA's preemption in 2016, signaling that states may have more involvement in natural gas regulation in the future.[135] 2. Improving the Outlook for Natural Gas & Pipelines A new Congressional Energy Policy Act could clarify and tighten FERC control over interstate natural gas pipeline projects, eliminating—or reducing the scope—of the savings clause. Klass and Rossi describe the savings clause approach to state environmental concerns as "costly and inefficient" because (1) FERC does not have a regular forum for state regulator input, and (2) the timing of the certificate process invites challengers.[136] New York was able to reject the Constitution Pipeline through recourse to federal environmental law, in-spite of prior approval by FERC.[137] It is important for Congress to keep eminent domain powers, and indeed clarify in a revised statute that these powers extend to dual-use natural gas and hydrogen pipelines, or pipelines transporting exclusively hydrogen. F. Legal Challenges with Transmission: Imported Power, Net Metering, Long-Distance Lines, and Feed-In Tariffs 1. Electricity Imports: Policy Improvements Electricity production remains largely a domestic industry, but the US has increased its imports from Canada and Mexico in recent decades. Electricity generated by large provincially controlled hydroelectric dams in Quebec, Ontario, Manitoba, and Newfoundland and Labrador is exported to New England, New York, and the Midwest, while the Canadian province of British Columbia imports electricity from the Pacific Northwest. Canada and the US had 60 electrical power linkages by 2015, consuming ten percent of all electricity produced in Canada, although only 1.6 percent of US retail sales.[138] By contrast to its connections with the Canadian grid, the US has few interconnects with Mexico. The passage of the Electricity Public Service Act in 1992 by the Mexican federal government opened the door to expanded electricity sales, prompting some US utilities to build power plants in northern Mexico adjacent to Southern California. Exports from Mexico account for less than one hundredth of a percent of US electricity demand, centered on a few border regions like Southern California, El Paso, and South Texas.[139] The dimensions of foreign electricity imports are narrow, but significant in the case of Canada for populous regions in the American Northeast, raising potential questions around the Foreign Sovereign Immunities Act of 1976.[140] Foreign state-owned enterprises have occasionally invoked sovereign immunity in an effort to avoid liability.[141] However, the Supreme Court has not clarified whether there is a distinction between national government owned state-owned enterprises, and those owned by sub-national authorities like the Canadian provinces. So far, power imports from North American neighbors has not generated much litigation or FSIA questions. In 2006, the Supreme Court did issue an opinion related to FSIA in context of a suit by the State of California against a British Columbian power producer. [142] Current models across solar, geothermal, wind, and natural gas commonly promoted renewable energy-sourced electricity through state mandates.[143] While the goal of reducing carbon emissions is a noble one, mandates smack of market interference and have the potential to create market distortions. Particularly in the Northeast, mandates might create a dangerous reliance on energy imported from Canadian state-owned provincial electrical utilities. State governments should develop comprehensive renewable energy plans that encompass nuclear and natural gas to maintain grid reliability. State emissions targets are appropriate if accompanied by RECs and tax credits, rather than mandates and power purchase requirements. State investments in training, research and development, or upgrades to port facilities to support offshore wind all merit consideration.[144] Canada is the only foreign electricity market that US policymakers need to give real consideration to in long-term market planning. Because Canada has a similar legal system and a long-standing history of friendliness with the US, any electricity import issues could likely be solved through Canadian courts, US courts, binding arbitration, or diplomatic channels. Nonetheless, so long as any ambiguity exists surrounding FSIA, it would be sensible to craft a treaty with Ottawa guaranteeing a level footing for American customers purchasing from Canadian provincially-owned generators. 2. Net Metering By the mid-2010s, over forty states had adopted some form of net metering, a scheme wherein customers with solar panels (and occasionally other renewable energy sources like geothermal and wind) sell surplus electricity back to utilities in exchange for credits to their electrical bill.[145] Net metering is an unusual system, because utilities pay customers for what competitors provide.[146] Net metering policies vary widely between states. Developed through the Public Utility Regulatory Act, it is up to states to choose to offer net metering.[147] Some states exempt small, municipal, or low environmental impact utilities from paying out net metering disbursements to customers.[148] Utilities are increasingly challenging net metering in state public utility commissions.[149] The Arizona Corporation Commission, for instance, allowed up to five dollars a month in charges for energy sold to the utility and credited toward a solar owner's account, whereas the Utah Public Service Commission rejected such a proposal.[150] Net metering is a regulatory riddle, and responses have encouraged it on resiliency grounds or rejected it as a form of unfair competition, subsidizing some ratepayers at the expense of others.[151] However, anticompetitive concerns are modest compared with the technical and market challenges that solar poses. As a result, the debate over net metering is one to be settled at the state level. 3. Feed-In Tariffs Feed-in tariffs (FIT) are an element of state public policy copied from the European energy market.[152] Renewable power generators are guaranteed access to the grid and local electrical utilities are required to buy electricity above market rates—in contrast to market-rates common with RECs.[153] A FIT sets the price to be paid for renewable energy, how long that price will last for, and mandates that utilities must purchase this power.[154] Several states faced Commerce Clause challenges to FITs.[155] However, in 2010, FERC indicated that FITs are not preempted by the Federal Power Act.[156] Much like net metering, FITs are perhaps best determined at the state level. Over the long-term, as renewable energy sources become more economical, state public utility commissions should phase out feed-in tariffs to reduce costs to end consumers and standardize on market-based policies. 4. Long-Distance Transmission Lines As in the context of natural gas, a new Congressional Energy Policy Act could eliminate the states rights savings clause, retaining only a limited vestige for comment by citizens and state siting commissions. Klass and Rossi recognize the need to overcome growing state siting committee and eminent domain hurdles, particularly with a need to transmit electricity from resource-rich areas—like the Midwest wind or Southwest solar—to where the energy is consumed.[157] "[E]xperts contend that more interstate, regional transmission planning and construction is not only more cost-effective, but is necessary in light of the aging grid. . .the need for increased reliance on renewable energy resources. . .and the fact that transmission projects require as long as a decade to plan and construct."[158] FERC approval of the Plains & Eastern Line over the objection of state regulators is an example of this model in action, but without accounting for state and local concerns projects are bound to bog down in litigation and public opposition.[159] Klass and Rossi propose the Great Northern Transmission line project from Manitoba into Minnesota as a well-rounded success story, wherein the developer conducted seventy-five public information workshops beginning before it filed its application.[160] The Great Northern model can be likened to Rhode Island's aforementioned offshore permitting experience. While tightening its control over siting, FERC could require something like this holistic outreach process to stakeholders prior to and during the permitting process. III. CONCLUSION The US has a once in a century opportunity to transform its energy system through regulatory streamlining. Policymakers must continue to examine ways to improve energy storage, whether through advanced battery technology, pumped storage, or hydrogen fuel cells—but existing barriers with these technologies mean that hydrogen is likely to be more viable than batteries across transportation, industry, and electrical power use cases. Nuclear and offshore wind face an unclear overlap of responsibilities between the federal government and states, which should be clarified to avoid lengthy litigation and problems with the CZMA. Federal preemption may be appropriate in the case of the two foregoing energy technologies, and may also be appropriate in the case of long-distance transmission lines and natural gas pipelines (particularly extended to dual-use natural gas and hydrogen pipelines). By contrast, most other renewable technologies are best regulated at the local level. States are adapting well to promote solar technology, but still present legal confusion with geothermal and impose some barriers on onshore wind. Policymakers must also consider the role of net metering, feed-in tariffs, depreciation schedules, and tax credits, applying comprehensive economic analysis to determine the best approach. By reducing barriers to renewable energy and more traditional sources of redundancy like nuclear energy and natural gas, America can transition to a low-emission hydrogen economy. 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[15] Vincent, supra, note 24, at 390-91 (noting that "Hydrogen burns quickly and emits only one-tenth the radiant heat of a hydrocarbon fire, reducing the risk of burn injury and other damage. . . Contrary to popular opinion, it is difficult to cause a mixture of air and hydrogen to explode.") [16] Vincent, supra, note 24, at 393-99; Calif. Proposed Clean Car Regulations Require Building of Hydrogen Stations, 24 No. 4 Underground Storage Tank Guide Newsl. 1 (2012). [17] Alex Brown, Electric Cars Will Challenge State Power Grids, Pew, (Jan. 9, 2020), https://www.pewtrusts.org/en/research-and-analysis/blogs/stateline/2020/01/09/electric-cars-will-challenge-state-power-grids. [18] Id. [19] Id. [20] Klass, supra, note 6, at 570-71. [21] Brown, supra, note 11. [22] Michael Ball & Martin Wietschel, The Hydrogen Economy: Opportunities and Challenges 38 (2009); see also Tugce Yuksel & Jeremy J. Michalek, Effects of Regional Temperature on Electric Vehicle Efficiency, Range, and Emissions in the United States, 49 Environ. Sci. Technol. 3974−80 (2015), https://www.cmu.edu/me/ddl/publications/2015-EST-Yuksel-Michalek-EV-Weather.pdf (finding that “annual energy consumption of [battery-powered vehicles] can increase by an average of 15% in the Upper Midwest or in the Southwest compared to the Pacific Coast due to temperature differences”). [23] Amy L. Stein, Regulating Reliability, 54 Hous. L. Rev. 1191, 1193 (2017). [24] Taylor Burke, Nuclear Energy and Proliferation: Problems, Observations and Proposals, 12 B.U. J. Sci. & Tech. L. 1, 4-5 (2006). [25] Public Utilities Commission v. Attleboro Steam and Electric Co., 273 U.S. 83 (1927). [26] Id. at 86. [27] Jeffery S. Dennis, Division of Policy Development Federal Energy Regulatory Commission, Introduction to Electric Power Regulation and Electricity Markets 6 (2015). [28] Alexandra B. Klass & Hannah J. 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Mississippi, 456 U.S. 742 (1982). [39] American Paper Inst., Inc. v. American Elec. Power Serv. Corp., 461 U.S. 402 (1983). [40] 15 U.S.C. § 79z-5b. [41] See Promoting Wholesale Competition Through Open Access Non-Discriminatory Transmission Services by Public Utilities; Recovery of Stranded Costs by Public Utilities and Transmitting Utilities, Order No. 888, 18 C.F.R. pts. 35, 385 (1996); Open-Access Same-Time Information System (Formerly Real-Time Information Networks) and Standards of Conduct, Order No. 889, 18 C.F.R. pt. 37 (1996); Regional Transmission Organizations, Order No. 2000, 18 C.F.R. pt. 35 (2000). [CHECK Pts.] [42] New York v. FERC, 535 U.S. 1 (2002) (holding that FERC did not exceed its jurisdiction by asserting jurisdiction over unbundled retail transmissions based on the plain language of the Federal Power Act. Order No. 888 ordered "functional unbundling" such that wholesale generators would make purchases under a general tariff applicable to themselves as well as competitors. Additionally, the Order created open access requirements for unbundled retail transmissions in interstate commerce.) [43] 1982–85 FERC ¶ 30,665 (1985). [44] 59 FERC ¶ 61,030 (1992) . [45] Klass & Wiseman, supra, note 3, at 213. [46] Klass & Wiseman, supra, note 3, at 214. [47] Klass & Wiseman, supra, note 5, at 214. [48] 151 FERC ¶ 61,049 (Apr. 16, 2015). [49] Tade Oyewunmi, An Instrumental Perspective on Power-to-Gas, Hydrogen, and a Spotlight on New York's Emerging Climate and Energy Policy, 38 Pace Envtl. L. Rev. 221, 230 (2021). [50] Oyewunmi, supra, note 32, at 230-31. [51] Oyewunmi, supra, note 32, at 236. [52] Oyewunmi, supra, note 32, at 236-37. [53] See Ball & Wietschel supra, note 40, at 623. [54] Ball & Wietschel supra, note 40, at 628. [55] Id. [56] See Justin Rowlatt, Nuclear power: Are we too anxious about the risks of radiation?, BBC, Sept. 27, 2020. [57] Kelsey E. Gagnon, Atomic Energy and Offshore Wind: The Struggle to Fight Climate Change and the Cost to be Clean, 26 Ocean & Coastal L.J. 25, 33 (2021). [58] Gagnon supra, note 45, at 34-35. [59] Gagnon, supra, note 45, at 41-42. [60] Id. [61] Northern States Power Co. v. State of Minn., 447 F.2d 1143, 1143-45 (8th Cir. 1971). [62] Michael E. Stern & Margaret E. Stern, 32 Utah Envtl. L. Rev. 431, 432 (2012). Explaining that 100 large nuclear facilities were cancelled in the US. [63] Stern & Stern, supra, note 48, at 435. [64] PG&E v. State Energy Comm'n, 461 U.S. 190, 212-14 (1983). [65] 42 U.S.C. § 2021(b). [66] PG&E v. State Energy Comm'n, 461 U.S. 190, 223 (1983); Virginia Uranium, Inc. v. Warren, 139 S.Ct. 1894, 1902 (2019). [67] Gagnon, supra, note 45, at 43. [68] David B. Spence, Regulation and the New Politics of (Energy) Market Entry, 95 Notre Dame L.R. 327, 362. [69] Daniel A. Repka & Tyson R. Smith, Deep Decarbonization and Nuclear Energy, 48 Envtl. L. Rep. News & Analysis 10244, 10245 (2018). [70] David B. Spence, Regulation and the New Politics of (Energy) Market Entry, 95 Notre Dame L.R. 327, 362. [71] Emily Hammond & Jim Rossi, Stranded Costs and Grid Decarbonization, 82 Brook. L. Rev. 645, 684-85 (2017). [72] Energy Policy Act of 2005, Pub. L. 109-58, 119 Stat. 594 § 1306. [73] Maxwell S. Bayman, Subsidizing Advanced Nuclear Energy, 9 Okla. J. L. & Tech. 62, 97, 99 (2013). [74] Bayman, supra, note 126. [75] Hammond & Rossi, supra, note 124, at 682. [76] See generally Office of Energy Efficiency & Renewable Energy, Solar Integration: Distributed Energy Resources and Microgrids (2021). [77] Holly Duke, Encouraging Rooftop Solar: What Policy is Right for Kentucky?, 47 N. Ky. L. Rev. 155, 158 (2020). [78]Kyle Weismantle, Building a Better Solar Energy Framework, 26 St. Thomas L. Rev. 221, 237-38 (2014). [79] Weismantle, supra, note 45, at 245. [80] Wildermuth, supra, note 32, at 532-33. [81] Federal Solar Income Tax Credit Gets 5-Year Extension, A&R Solar (Dec. 21, 2016), https://www.a-rsolar.com/news/federal-solar-income-tax-credit-gets-5-year-extension/; Gail Suchman et al., Congress Extends Renewable Energy Tax Credits In 2021 Omnibus Spending Bill, Mondaq (March 26, 2021), https://www.mondaq.com/unitedstates/renewables/1051482/congress-extends-renewable-energy-tax-credits-in-2021-omnibus-spending-bill-. [82] See Palumbo, supra, note 31, at 200-201. [83] Payne, supra, note 113, at 135. [84] Payne, supra, note 113, at 179. [85] Payne, supra, note 33, at 179. [86] See Joseph B. Nelson & David P. Yaffe, The Emergence of Commercial Scale Offshore Wind: Progress Made and Challenges Ahead, 10 San Diego J. Climate & Energy L. 25, 27 (2019). [87] Nelson & Yaffe, supra, note 33, at 27. [88] Nelson & Yaffe, supra, note 33, at 28-29. [89] Lawrence Susskind & Ryan Cook, The Cost of Contentiousness: A Status Report on Offshore Wind in the Eastern United States, 33 Va. Envtl. L.J. 204, (2015). [90] Susskind & Cook, supra, note 66, at 219. [91] Id. [92] Susskind & Cook, supra, note 66, at 220-21. [93] Susskind & Cook, supra, note 66, at 226. [94] Susskind & Cook, supra, note 66, at 226-27. [95] Ashlyn N. Mausolf, Clearing the Regulatory Hurdles and Promoting Offshore Wind Development in Michigan, 89 U. Det. Mercy L. Rev. 223, (2012). [96] Taylor Haelterman, Michigan has most potential for offshore power generation, Grand Rapids Business Journal (Jul. 23, 2021), https://grbj.com/news/energy/michigan-has-most-potential-for-offshore-power-generation/. [97] Mausolf, supra, note 74, at 237. [98] Andy Su, Establishing Floating Offshore Wind Development in Oregon: Lessons from East Coast State Policy Tools Promoting Offshore Wind, 38 UCLA J. Envtl. L. & Pol'y 277, 280 (2020). [99] Su, supra, note 75, at 281. [100] Su, supra, note 75, at 285. [101] Su, supra, note 75, at 306-07. [102]Sam Kalen, Cruise Control and Speed Bumps: Energy Policy and Its Limits for Outer Continental Shelf Leasing, 7 Envt'l & Energy L. & Pol'y J. 155, 169-171 (2012). [103]Id. [104] Amy J. Wildermuth, Is Environmental Law a Barrier to Emerging Alternative Energy Sources, 46 Idaho L. Rev. 509, 534 (2010); see also Animal Welfare Inst. v. Beech Ridge Energy LLC, No. RWT 09CV1519, 2009 WL 4884520, at *6 (D. Md. Dec. 8, 2009) (environmentalists challenged wind project claiming it would "take" endangered bats in violation of the Endangered Species Act). [105] Wildermuth, supra, note 79, at 535. [106] Alexandra J. Zaltman, Obstructions and Opportunities in the Complex World of Massachusetts Onshore Wind Power Development, 13 J. High Tech. L. 215 (2012). [NO INTERNAL PAGE NUMBERS] [107] Zaltman, supra, note 81; see also TRC Solutions, Renewable Energy Siting Study, Env. 09 Pol. 05, (2009). [108] Zaltman, supra, note 81. [109] Mark L. (Buzz) Belleville, The Wind Blows in Virginia Too—Deconstructing Legal and Regulatory Barriers to the Development of Onshore, Utility-Scale Wind Energy in Virginia, 41 Wm. & Mary Envtl. L. & Pol'y Rev. 151, 152-53 (2016). [110] Crystal Masterson, Wind-Energy Ventures in Indian Country: Fashioning a Functional Paradigm, 34 Am. Indian L. Rev. 317, 317 (2010). [111] Masterson, supra, note 51, at 328-29. Tribes may also take advantage of 26 U.S.C. § 45A, which grants twenty percent tax breaks on wages and health insurance paid to qualified tribal members. [112] Masterson, supra, note 51, at 333. [113] Masterson, supra, note 51, at 337. [114] See Great Lakes Submerged Lands Permit, Michigan State License Search (Dec. 2019), https://www.michigan.gov/statelicensesearch/0,4671,7-180-24786-244636--,00.html. [115]Geothermal Energy, Energy Resources Program, US Geological Survey (2021), https://www.usgs.gov/energy-and-minerals/energy-resources-program/science/geothermal?qt-science_center_objects=0#qt-science_center_objects (explaining that 518,00 Mwe would likely come from enhanced geothermal, involving injection of fluids). [116] Kathleen Callison, Water and Geothermal Development in the Western U.S.: Real World Challenges, Regulatory Conflicts and Other Barriers, and Potential Solutions, 22 Pac. McGeorge Global Bus. & Dev. L.J. 301, 311-12 (2010); Geothermal Energy Technology Brief 15 (2017), https://www.irena.org/-/media/Files/IRENA/Agency/Publication/2017/Aug/IRENA_Geothermal_Power_2017.pdf (explaining that some geothermal projects may involve “enhanced” injection of surface water to be heated at depth or to create fissures for additional geothermal energy production). [117] U.S. v. Union Oil Co. of California, 549 F.2d 1271, 1279 (9th Cir. 1977). [118]Kurt E. Seel, Legal Barriers to Geothermal Development, 3 Rocky Mtn. Min. L. Inst. 1, 13 (2009). [119]Kurt E. Seel, Legal Barriers to Geothermal Development, 3 Rocky Mtn. Min. L. Inst. 1, 13 (2009). [120] Geothermal Kinetics, Inc. v. Union Oil Co., 75 Cal.App.3d 56, 58 (Ct. App. 1980). [121] Callison, supra, note 47, at 311-12. [122] Kurt E. Seel, Legal Barriers to Geothermal Development, 3 Rocky Mtn. Min. L. Inst. 1, 13 (2009). [123] Seel, supra, note 93, at 3. [124] Seel, supra, note 93, at 4. [125] Seel, supra, note 93, at 3. [126] Seel, supra, note 93, at 5. [127] Bureau of Land Management, NEPA Efficiencies for Oil and Gas Development (Jun.6, 2018), https://www.blm.gov/policy/ib-2018-061. [128] Lincoln L. Davis & Victoria Luman, The Role of Natural Gas in the Clean Power Plan, 49 J. Marshall L. Rev. 325, 326 (2015). [129] Alexandra B. Klass & Jim Rossi, Reconstituting the Federalism Battle in Energy Transportation, 41 Harv. Envtl. L. Rev. 423, 425 (2017). [130] Klass & Rossi, supra, note 99, at 427. [131] 15 U.S.C. § 717b(d). [132] Klass & Rossi, supra, note 99, at 433-34. [133] Klass & Rossi, supra, note 93, at 435; Keystone XL and Dakota Access were both envisioned for oil transportation, but opposition is found against both oil and natural gas pipelines. [134] Id. [135] See ONEOK, Inc. v. Learjet, Inc., 135 S. Ct. 1591, 1594 (2015) [136] Klass & Rossi, supra, note 48, at 480. [137] Klass & Rossi, supra, note 48, at 479. [138] U.S. Energy Information Agency, U.S.-Canada electricity trade increases (2015). [139] U.S. Energy Information Agency, Mexico Week: U.S.-Mexico electricity trade is small, with tight regional focus (2013). [140] H.R. Rep. No. 94-1487, at 6 (1976), as reprinted in 1976 U.S.C.C.A.N. 6604, 6604. [141] Glob. Tech., Inc. v. Yubei (Xinxiang) Power Steering Sys. Co., 807 F.3d 806 (6th Cir. 2015). [142]Powerex Corp. v. Reliant Energy Services, Inc., 551 U.S. 224 (2006). [143] See Su, supra, note 57, at 305. [144] Su, supra, note 57, at 306-7. [145] Brian Palumbo, Looking in the Side-View Mirror: Assessing the Current and Future State of the Solar Energy Industry as it Reaches the Mainstream, 41 Colum. J. Envtl. L. 183, (2016). [146] Palumbo, supra, note 111, at 211. [147] Heather Payne, A Tale of Two Solar Installations: How Electricity Regulations Impact Distributed Generation, 38 U. Haw. L. Rev. 135, 143 (2016). [148] Payne, supra, note 113, at 145. [149] Palumbo, supra, note 113, at 197-98. [150] Palumbo, supra, note 113, at 198. [151] Harvey L. Reiter & William Greene, The Case for Reforming Net Metering Compensation: Why Regulators and Courts Should Reject the Public Policy and Antitrust Arguments for Preserving the Status Quo, 37 Energy L.J. 373, 373 (2016). [152] Felix Mormann, Constitutional Challenges and Regulatory Opportunities for State Climate Policy Innovation, 41 Harv. Envtl. L. Rev. 189, 199-200 (2017). [153] Id. [154] Lincoln L. Davies, Reconciling Renewable Portfolio Standards and Feed-In Tariffs, 32 Utah Envtl. L. Rev. 311, 324 (2012). [155] Mormann, supra, note 117, at 193. [156] Cal. Pub. Utils. Comm'n., 133 FERC ¶ 61,059 (Oct. 20, 2010). [HOW TO PROPERLY CITE?] [157] Klass & Rossi, supra, note 99, at 443-44. [158] Id. [159] Klass & Rossi, supra, note 99, at 424-25. [160] Klass & Rossi, supra, note 99, at 477.

Originally published April 3, 2022 On February 24, 2022, the attack began. After months of massing troops along the Ukrainian border, Russia fired dozens of missiles against targets within its southern neighbor’s borders and launched a three-pronged invasion.[1] The Russia-Ukraine War is now over a month in-progress. Although negotiations are taking place, there is no end to the conflict in sight yet. This report analyzes the situation in Ukraine—and Western responses—with the goal of providing American, European, and Canadian leaders with insights to bring the war to a close, ensure long-term stability, minimize casualties in Ukraine, and prevent the conflict from becoming a wider and more destructive war. Executive Summary Western leaders have taken vigorous steps to condemn Russia, such as stiff sanctions, closing off air space, and sending military aid to Ukraine. However, such measures can easily backfire, deepening support for President Putin within Russia, resulting in a drawn out and bloody proxy war in Ukraine, and forcing Russia firmly into China’s camp. A careful analysis is needed to determine whether sending additional weapons to Ukraine is appropriate. Sanctions and a retreat to petty Russophobia threaten to increase Putin’s power and drive Russia further into the Chinese camp, without significantly changing the course of the war. The West is best positioned to counter Russian aggression by emphasizing its own first principles and presenting a militarily-credible show of force in Eastern Europe with the consent of NATO member states there. A Rules Based Order? The feverish response to the Russian invasion betrays several things. Many countries, even the incumbent superpowers the US and China regard Russia as a peer country, and a potential trendsetter for others. Throughout the 19th century, Europeans and their settler brethren in the Americas and Oceania extended a mostly European system of diplomacy, Westphalian sovereignty, and international law throughout the world. When the European cradle of this system descended into chaos at the end of the age of empires in World War I and again during World War II, the rest of the world was drawn in as well. Simultaneously, new players outside of Europe: the US, Soviet Union, Japan—and now China and India—became involved in global balance of power gamesmanship. It is true that a “rules-based” international order of sorts came into being after World War II, with the more enduring if somewhat toothless UN as a forum for both cooperation and airing grievances. But inasmuch as there is a rules-based system at all, it largely came into being during the 1980s, 1990s, and 2000s with the expansion of international organizations, the advent of the internet, financialization, cheaper air travel, containerization, and all the familiar interconnects of the post-Cold War. Russia’s senior leaders made a bold gambit in Ukraine that might backfire on them—and may already have backfired.[1] But comparing the opprobrium heaped on Russia with the reaction to other unilateral military actions in the 21st century reveals that there are few rules in a rules-based system. George H.W. Bush deserves credit for his efforts to create a new international system at the time of the 1991 Gulf War. Assembling a vast coalition of countries, totaling nearly a million personnel, Operation Desert Storm received UN approval and offered off-ramps to Saddam Hussein.[2] The air war and four-day ground war that followed contained its excesses—including air strikes on retreating Iraqi forces[3]--but was limited in scope to liberating Kuwait and preventing the unilateral annexation of another country. However, the exuberance of the 1990s and early 2000s quickly strayed away from this rules-based approach. In 1999, NATO unleashed a massive air war on Yugoslavia, devastating the country’s civilian and military targets with a rain of bombs.[4] NATO forces occupied the breakaway Kosovo province, and allowed it to unilaterally declare independence in 2008. Then in 2003, the US, without seeking UN approval launched its regime change operation in Iraq with the UK, Australia, Poland, and Italy. Russia launched its invasion of Georgia in 2008 receiving only modest pushback. Turkey has intervened in Libya and most dramatically in Syria, carving out a substantial occupation zone in the north of the country. Saudi Arabia launched a unilateral invasion of Yemen in 2015. And China, flaunting the decisions of the Permanent Court of Arbitration has continued to develop its artificial islands in the South China Sea.[5] The reciprocal nature of harm with warfare means that war—like trade and diplomacy—is one of the truest applications of international law. But to a large extent, might still makes right. The UN Security Council’s permanent membership, which overlaps one-to-one with the five “permitted” nuclear nations under the Non-Proliferation Treaty strongly indicates that although these powers ought to play nice, they are at liberty to make whatever geo-strategic decisions their leaders choose. Most people agree that Russia is in the wrong for its attack on Ukraine. But few can make out an articulable principle as to why Russia is actually wrong. Is it that Russia did not seek UN approval? The US, Saudi Arabia, Turkey, and China certainly have not sought UN approval lately. Is it that Russia has attacked a democratically elected government, approved by its people? Although doubtless corrupt and tyrannical, Yugoslavia’s Slobodan Milosevic was elected by his citizens.[6] What the preceding rhetorical questions are intended to expose is that a reevaluation of the “rules-based” international system is needed. In particular, leaders must evaluate the future of unilateral military action and articulate a principle that can be applied consistently worldwide. The US has given the world many philosophical, legal, spiritual, and material benefits throughout its incumbency as a superpower. But it has not acted affirmatively enough to ensure a rules-based system. In Eastern Europe, the opportunity has come and gone for further peaceful land transfers or new weapons controls initiatives—at least until the present situation in Ukraine is resolved. Although Ukraine’s government sought NATO membership of its own accord, NATO's dragged out "wait and see" policy toward Ukraine was unnecessary, particularly because alternative treaties and mechanisms could bring about the same result. The rules-based Western order is premised on control of the seas and the skies. At no time, since before the American Revolution has a non-English speaking country truly dominated the oceans. The UK and the US, with some honorable contributions by France (and others) have fended off all the challengers, particularly Germany and the Soviet fleet. In the short-run, attempts to cripple Russia with sanctions are likely to backfire, affecting Russians with the greatest international involvement, weakening corporations and wealthy individuals with the most ability to challenge Putin, and solidifying cooperation between the two largest land-based powers—China and Russia.[7] The strengthening of this Eurasian alignment could easily threaten the open seas and skies ensured by the US, UK, France, and other Western allies. Westphalians vs. Imperials Europe is uniquely obsessed with the concept of the nation-state, subdivided into an often long-standing mosaic of countries. New countries are created after bouts of war, but others endure with borders virtually unchanged, even though the political realities that gave birth to those boundaries has long since vanished. Switzerland endures from the 17th century. Belgium sticks around as the remnants of the Spanish Netherlands, transformed 200 years ago into a French-led kingdom with a Dutch Catholic underclass and named after an ancient tribe in an attempt to give national spirit to what was little more than a buffer state.[8] Even the countries of the former Yugoslavia, which are the newest additions to the European map, follow exactly the old administrative boundaries of Yugoslavia and the preexisting Ottoman and Austrian territories. Westphalianism is worldwide these days, though elsewhere it takes a very different form: the hyper-diverse but federalized and still culturally coherent Anglosphere countries, the shaky but long-lasting countries of South America, or the bizarre multi-ethnic polygons of Africa. Pure Westphalianism is intended to ensure sovereignty and in democratic instances translate the will of the people into action. But it struggles to deal with changed realities or conflicting claims of self-determination. There appear to be three broad camps to highly diverse countries: centralized and often authoritarian “imperial” administration, democratic federalism, and some kind of shaky confederalism. Placing countries on this spectrum is challenging and inexact. The US, Brazil, Canada, and Australia are democratic and federalized. Russia and China follow a pluralistic imperial model, held together by a large super-majority ethnic group. And the Democratic Republic of Congo, Nigeria (and on a bad day, Mexico) struggle along in a more confederal model, with some centralized power in a few big cities. “Imperial” or “civilizational” countries like Russia have plenty of traditional Westphalian characteristics, but other aspects too.[9] On one hand, Russia’s national power is highly concentrated to Moscow and it privileges a single language, religion, and ethnic group above others. But it also has a great deal of pluralism, accommodating groups like Tatars, Bashkorts, and Chechens as independent ethnic groups committed to the overall project of the Russian state, but much more self-governing in their own affairs.[10] Outside of Europe, civilizational and democratic-federal models seem much more applicable. The European Union is in some ways an attempt to get democratic-federal or confederal benefits to share resources and foster trade. In Russia and China, a highly centralized state may need to demonstrate that it is generating benefits for its citizens and demonstrate its strength in highly visible and nationalistic ways. Therefore, Putin’s shows of strengths are self-serving, benefiting his continued leadership as Russia’s president, and ideally glorifying the state in the process. Civilizational pluralism is much less democratic in a Western sense and appears to place a great deal of emphasis on preventing instability within its own country. Thus, it pursues majoritarian desires that might also offend its plural member groups: rejecting same-sex marriage, rallying around the state, blending conservative and social democratic social policy, and cracking down on dissenters of all kinds ranging from reformist democracy advocates to those more racialist and nationalist than the state itself.[11] Russia and Geopolitics Geopolitics is a thrilling pseudoscience. A strange blend of practical and speculative, it is not clear that geopolitical outlooks are universally held in the leadership of every (or even many) countries. But among great powers, geopolitics is part and parcel of politics, diplomacy, military planning, and intelligence operations. The famous “Heartland” theory with Russia astride the “world island” of Eurasia is probably over-hyped.[12] But it is true that in Central Asia and North Africa, extensive land trade met its demise by the 19th century, displaced by European sea trade. Sea trade and to some extent air trade dominate our current globalized world, due in part to non-interchangeable rail gauges and terrible road systems in many parts of the world. Regardless of the outcome of the Russia-Ukraine War, Russia has been shoved firmly in the direction of China’s camp. This combination of traditionally tellurocratic, land-based empires is significant, and poses a possible counterweight to Western maritime trade inter-dependence not seen since the early days of the Cold War. The Kremlin is deeply flawed, but pushing Russia toward the Chinese camp is likely a mistake. Russia has a culture much more Western in character than China and has the potential to be a long-run strategic partner in something resembling a rules-based order—or if nothing else than as a geopolitical counterweight to China. World War II: A problematic founding mythos World War II is an important element of the modern mythos of both the West and Russia. Indeed, political strategists from the Yeltsin and Putin administrations in Russia placed heightened emphasis on Russia’s Great Patriotic War as a rallying point between the corruption of the tsarist regime and the repression of communism. In spite of lively research and extensive documentary footage of World War II, the truth is we are all separated from that war by a yawning gap of time—and what the war means has taken on new shadings.[13] In the West, World War II is a tale of democratic struggle, expeditionary “just war” intervention, and above all a caution to be on guard against strongmen, nationalists, and reactionaries. By contrast, the Russian narrative appears to be much more one of pride, strength, and a nationalistic rally to fend off a violent invader. These divergent views of World War II play out in unusual ways, such as the mutual claims on both sides of Nazism in the current war. Unfortunately, the framing of the current conflict through the lens of World War II also impairs clear thinking about the conflict. Westerners have portrayed Putin as a Hitler analogue—much as they did Slobodan Milosevic or Saddam Hussein—and use the late British prime minister Neville Chamberlain’s concessions to Hitler in Czechoslovakia in 1938 as a touchstone for a militarized response.[14] Meanwhile, Putin’s claims of a fascist Ukrainian government are dismissed in the West a priori because “Zelensky is Jewish.”[15] President Putin’s claim fails on the grounds that Zelensky’s policies are anything but fascist. Although he has rallied to the nationalist cause in the short-run, Zelensky has previously aligned himself with European internationalism and socially liberal policies. Western media have largely ignored some uncomfortable ultranationalist leanings by the Azov Battalion and other groups in Ukraine, but because no groups which are distinctly ultranationalist so much as hold a seat in Ukraine’s parliament, the claim is far-fetched. Western Response Western leaders threatened significant sanctions for weeks leading up to the invasion, but Germany in particular was hesitant to take dramatic steps to crackdown on Russia. That changed within days of the invasion, with Germany and other Western powers supporting an initiative to block Russia from the SWIFT system, committing to a NATO two percent of GDP defense spending objective[16], and agreeing to arm Ukraine. American self-defense law contains a useful proposition about the nature of conflict. If one person punches another, the person who is attacked may respond proportionately landing a punch of their own. The attacker has lost the right self-defense. But if the person attacked were to draw a gun and thus escalate the conflict, the attacker regains the right of self-defense. Russia merits a forceful response, but Western powers risk playing their whole hand. Isolating Russia from the rest of the world may offer leverage in the short run, but Russia is better poised for autarky than almost any other nation. It risks alienating the Russian people and rallying public support behind Putin. Ukraine has every right to defend itself and safeguard its territory. However, Western leaders must remember that they owe no specific treaty obligation to Ukraine—and previously signaled an unwillingness to defend its sovereignty or 1990s security guarantees when they tacitly tolerated Russia’s annexation of Crimea eight years ago. Just war theory instructs us that it may be unethical to support a party that is sure to lose a war. Lacking in-depth situational analysis informed by satellite imagery and signals intelligence, the analytical and public policy community is left to weigh in with best practices. If Western countries continue to supply weapons, they must ensure that these weapons are given to government forces that are able to terminate the war diplomatically, and as much as possible prevent the use of these weapons by gangs and militias. Western media love an underdog story and see it in the heroism of Ukrainians rising to the defense of their country. The response of average Ukrainian citizens is likely organic and genuine, but Western leaders must be cautious that this pivotal event in modern Ukrainian nationalism does not turn into revenge seeking against Russian-speaking Ukrainians on the ground. American media in particular spent little time covering the drawn out conflict in the Donbass. Therefore, Americans have little sense of the nuances of the situation. They will not have heard that Zelensky ran as a peacemaker only to orient more closely with the West and relaunch fighting in the Donbass. Nor will they hear about Zelensky’s funds stowed in overseas bank accounts[17] or his ties to the Dnipro-based anti-Russian oligarch, Igor Kolomoisky (subject to US sanctions).[18] Russia is no longer as closed to the outside world as it was during the Cold War, which to some extent may make its domestic information control more effective. Rather than rattle off crude Stalinist propaganda, it is able to rely on just enough control of its citizens, and may be able to pit the majority of its population against anti-war Russians perceived as insufficiently nationalistic, or too “yuppy” and Western in their orientation. Concerningly, Western media has so far readily repeated Ukrainian government talking points without carefully assessing the validity of these statements. Although Ukraine is the major media story of the day, Western media has also honed in more on pathos than the course of events, creating risks that policymakers pushed on by a mobilized public will misgauge the situation. Western media has repeatedly emphasized Russia’s combat losses and alleged poor performance in the conflict to-date. Russia seems to have advanced more slowly in the north and east than its leaders wished and it has lost a number of armored vehicles, helicopters, and fighter planes by most accounts, as well as perhaps thousands of soldiers. But it also continues to inflict significant and likely unsustainable losses on Ukraine. Western citizens and even many in the leadership are not privy to key details. How many Ukrainian planes survive? What about armored vehicles? Is Russia merely waiting for the weather to moderate before it encircles Kiev and shells the city into submission—or will it regroup and attack to consolidate gains east of the Dnieper River? Unfortunately, many governments and private organizations in the West have responded to events with nothing more than petty Russophobia. Alcohol boards in Canada have launched a boycott of Russian spirits, and most shameful of all symphonies are demanding public statements from their Russian members condemning Putin[19]—the exact kind of discriminatory bluster leveled against Germans in the world wars. Organizations need to check this shameful activity and focus any condemnation on the Russian government itself and not individuals. With the same totalizing ferocity as the response to Covid-19, Western countries have closed their airspace to Russia and isolated it. War and perceived periods of crisis are commonly used as a chance to consolidate power and retaliate against rivals. Efforts to tie Western conservatives to Russia are concerning and misleading. Even more concerning are the efforts to suppress information about the war, even if it is biased like the total takedown of RT and Sputnik throughout the EU and the shutdown (and deletion) of RT content on YouTube.[20] Censorship is not how a free society responds to a proxy war. Western leaders opted for too little too late and failed to articulate clear standards in the years leading up to the war, or take steps to stabilize the territorial situation in Ukraine through diplomatic means. A minority of progressive voices in the Western left have raised charges of racism in the coverage of the war. Certainly, the responses are extremely uneven. Wars of equivalent human tolls rage right now in Yemen, Myanmar, Ethiopia, and Mexico without so much as a fraction of the same news coverage. Ironically, many of the same outlets that proclaimed death to “white supremacy” and an end to systemic racism less than two years ago, in the aftermath of the George Floyd protests, now lavish attention on Ukraine. The West must approach the conflict through first principles. If there is little hope of a Ukrainian victory, Western leaders should learn from the mistakes of Syria, Yemen, Angola, and Afghanistan, and withhold weapons from Ukraine to protect Ukrainian civilians from unnecessary destruction and loss of life. Apart from the risk that Ukraine will be totally devastated, with little hope of near-term recovery, the war poses serious risks of escalation. The possibility for mistakes are as great as they ever were doing the Cold War, particularly because the frontier of today’s confrontation is right on the Russian border. An Alternative Western Response In the 1980s, NATO routinely rehearsed for a full-scale Soviet invasion of Western Europe with the immense REFORGER (Return Forces to Germany) exercise. Today, Russian aggression is a challenge for the US, Canada, and European nations alike, and can be met with a credible show of force in vulnerable areas akin to REFORGER. Western leaders should emphasize withdrawal of sanctions in exchange for meaningful changes in Ukraine. The war in Ukraine presents a valuable opportunity to articulate new international norms about resort to force. The West could agree to Ukrainian neutrality in exchange for Russian withdrawal and broker changes to the Ukrainian constitution to allow a federal state with respect for linguistic rights. A settlement should seek to reintegrate the breakaway Donetsk republics with Ukraine. This could be achieved through amnesty for leaders—and rank and file soldiers—of the two breakaway republics in exchange for reintegration with Ukraine. To smooth reintegration, an agreement could explicitly prohibit the deployment of the armed forces of either Ukraine or Russia in the Donetsk region and focus on disarmament in the region apart from regional police. Northern Ireland’s Good Friday Agreement might also serve as a model. To smooth tensions, residents of Northern Ireland could choose Irish or British citizenship—or both. Similarly, Donetsk citizens could be granted special dispensation to choose their citizenship status. Recognition of Crimea is a key goal for the Russian Federation and Western leaders could emphasize a return to the heritage of arbitration, calling on Ukraine to recognize Crimea as part of Russia in exchange for open access to Crimean ports. Above all, Western leaders should articulate the circumstances under which unilateral resort to force are appropriate. Additionally, the war presents a chance to recognize that balance of power and spheres of influence still exist in the modern world. Apart from its current return to prominence in opposition to Russia, NATO’s purpose is unclear in the 21st century. The alliance could agree that it will not expand further into Eastern Europe, the Caucasus, and Central Asia, but work on different mechanisms to improve security with countries in those regions. Conclusion The Russian invasion of Ukraine is a major escalation of a war that has dragged on since 2014. Western leaders must push back again Russia’s further violation of Ukraine’s sovereignty without broadening the war, worsening the refugee crisis, or resulting in the unnecessary deaths of Ukrainians. A careful analysis is needed to determine whether sending additional weapons to Ukraine is appropriate. Sanctions and a retreat to petty Russophobia threaten to increase Putin’s power and drive Russia further into the Chinese camp, without significantly changing the course of the war. The West is best positioned to counter Russian aggression by emphasizing its own first principles and presenting a militarily-credible show of force in Eastern Europe with the consent of NATO member states there. References [1] “Russia Invades Ukraine.” Country report. Russia (2022). [1] James Lacey, et al., The Wargame Before the War: Russia Attacks Ukraine, War on the Rocks, (March 2, 2022), https://warontherocks.com/2022/03/the-wargame-before-the-war-russia-attacks-ukraine/. [2] See U.N. Security Council Resolution 678, S/RES/678. [3] See Peter Mansbridge, “The Highway of Death: The Road That Links Kuwait City with Iraq is a Vivid Reminder of Past Conflict,” Maclean’s (Toronto), (2003). [4] Cordesman, Anthony H. Lessons & Non-Lessons of the Air & Missile Campaign in Kosovo. Westport: Greenwood Publishing Group, Incorporated, 2001. [5] See PCA Case No. 2013-19. [6] Erlanger, Steven. “MILOSEVIC SEEKING A RUNOFF ELECTION AFTER HIS SETBACK.” The New York Times. New York, N.Y: The New York Times Company, 2000, Late Edition (East Coast) edition. [7] As of late March, 2022, the value of the ruble recovered to approximate levels at the start of the war. Kate Davidson, “Biden turned the ruble into rubble. Then it quickly came back,” Politico, (March 31, 2022), https://www.politico.com/news/2022/03/31/ruble-recovery-russia-biden-sanctions-00021850. [8] Partem, Michael Greenfield. “The Buffer System in International Relations.” The Journal of conflict resolution 27, no. 1 (1983): 3–26. [9] See generally, Pabst, Adrian, “China, Russia and the return of the civilisational state,” New Statesman, May 8, 2019, https://www.newstatesman.com/world/2019/05/china-russia-and-the-return-of-the-civilisational-state. [10] Sakwa, Richard. Chechnya: From Past to Future. London: NBN International, 2005, p. 44-66. [11] “‘He Said to the Border Guards, “You Must Have Been Missing Me”’--Navalny Arrested on Return to Russia; The Intelligence.” The Economist (London) (2021); See Horvath, Robert. Putin’s Fascists: Russkii Obraz and the Politics of Managed Nationalism in Russia. Milton: Taylor & Francis Group, 2020, at p. 1-12. [12] “Heartland Theory,” American Geopolitical Society, https://americangeopoliticalsociety.com/heartland. [13] Roediger, Magdalena Abel, Sharda Umanath, Ruth A Shaffer, Beth Fairfield, Masanobu Takahashi, and James V Wertsch. “Competing National Memories of World War II.” Proceedings of the National Academy of Sciences - PNAS 116, no. 34 (2019): 16678–16686. [14] “Lindsey Graham: Putin sees Neville Chamberlain when he looks at Joe Biden,” Fox News, (Feb. 22, 2022), https://www.foxnews.com/media/graham-biden-neville-chamberlain-vladimir-putin-ukraine. [15] Tara John & Tim Lister, “A far-right battalion has a key role in Ukraine's resistance. Its neo-Nazi history has been exploited by Putin,” CNN, (March 30, 2022), https://www.cnn.com/2022/03/29/europe/ukraine-azov-movement-far-right-intl-cmd/index.html. [16] Sheahan, Maria & Marsh, Susan, “Germany to increase defence spending in response to 'Putin's war' – Scholz,” Reuters, Feb. 27, 2022, https://www.reuters.com/business/aerospace-defense/germany-hike-defense-spending-scholz-says-further-policy-shift-2022-02-27/. [17] “Pandora Papers: Ukraine leader seeks to justify offshore accounts,” Al Jazeera, Oct. 4, 2021, https://www.aljazeera.com/news/2021/10/4/pandora-papers-ukraine-leader-seeks-to-justify-offshore-accounts. [18] David Clark, “Will Zelenskyy target all Ukrainian oligarchs equally?” Atlantic Council, Jul. 10, 2021, https://www.atlanticcouncil.org/blogs/ukrainealert/will-zelenskyy-target-all-ukrainian-oligarchs-equally/. [19] Valery Gergiev, “Denounce Putin or lose your job: Russian conductor Valery Gergiev given public ultimatum,” The Guardian, https://www.theguardian.com/music/2022/feb/28/denounce-putin-or-lose-your-job-russian-conductor-valery-gergiev-given-public-ultimatum. [20] “YouTube blocks Russian state-funded media, including RT and Sputnik, around the world,” France24, March 12, 2022, https://www.france24.com/en/europe/20220312-youtube-blocks-russian-state-funded-media-including-rt-and-sputnik-around-the-world.

Originally published January 22, 2022 INTRODUCTION New technologies are redefining the financial sector. Cryptocurrencies are used as alternative investments, speculative assets, and methods of payment, while digital financial technology, better known as fintech, accelerates payments, lending, and investing. Simultaneously, central banks like the US Federal Reserve reckon with the complexities of the modern economy, striving to stabilize inflation, prices, and the economy as a whole. But a new risk looms: the possibility that the Federal Reserve will move toward creating a government-backed, central bank digital currency (CBDC) that goes beyond existing private sector cryptocurrencies, laying the seeds of next-generation financial crises. The Federal Reserve should not take the risky step of creating a CBDC, but rather should coordinate with Executive Branch regulators to support the development of private sector stablecoins that lack the systemic economic risks posed by a CBDC. This paper will examine the case against a CBDC through a rules-based monetary policy framework that considers: (1) how US financial regulators should regulate fintech and cryptocurrencies with an eye to financial stability, and (2) the extent of Federal Reserve monetary policy involvement in new technologies. Part I will examine the monetary history of the US since the creation of the Federal Reserve system, proposed and implemented rules-based monetary policies, and the advent of fintech and cryptocurrencies. Part II will analyze the current state of fintech and cryptocurrency regulations. Part III, in turn, will assess next steps for fintech and cryptocurrency regulations by Executive Branch regulators, the involvement of the Federal Reserve, and the question of a CBDC versus private sector stablecoins, all assessed within a rules-based monetary policy framework. I. MONETARY POLICY: AN OVERVIEW A. The Federal Reserve System: From Origins to Inflation Monetary policy is intentional adjustment of the money supply by a central bank to achieve monetary equilibrium. [1] The Federal Reserve was created in 1913 as the American central bank, setting monetary policy for the nation.[2] The Federal Reserve was created at the behest of financial magnate J.P. Morgan, senior bankers, and Progressive reformers. The plan for a central bank took shape at a meeting of politicians and finance leaders at Morgan’s estate on Jekyll Island, Georgia.[3] Emerging from the Panic of 1907, Morgan sought a national bank that would stabilize the economy through panics and recessions.[4] Today, the Federal Reserve is intended as an independent central bank that does not create the currency it circulates.[5] The largest private banks in the Federal Reserve's regions elect its twelve regional directors, who in turn oversee the Fed's role as a lender of last resort, the mandatory reserve requirements for banks, and the federal funds rate—the interest rate charged to banks borrowing funds from the Fed.[6] The US is famous for its dual banking system, with chartering and regulation of banks by both the federal and state governments, which has existed for over two centuries.[7] Long before the emergence of the Federal Reserve System, in 1791, Congress at the urging of Secretary of the Treasury Andrew Hamilton granted a twenty-year charter to the First Bank of the United States.[8] The new bank was a private enterprise with twenty percent ownership by the national government which enraged small government-oriented Jeffersonian Republicans because it allowed foreign influence over currency and national affairs.[9] After a lapse in the charter of the first bank and financial difficulties during the War of 1812, Congress chartered the Second Bank of the United States for another twenty year span in 1816, with similar drawbacks, prompting populist firebrand Andrew Jackson to mount a successful presidential campaign on the bank's elimination—which occurred with the lapse of its charter in 1836.[10] By the time the Federal Reserve came about, President Jackson's opposition to the Bank of the United States nearly eighty years earlier was by then merely a part of history, William McKinley had defeated William Jennings Bryan's populist free silver movement in 1896, and banks in New York City sought a central bank to compete with the financial primacy of London.[11] Following the tumult of World War I, and throughout the 1920s, the Fed dealt with US dollar deflation problems and lowered its discount rate to support Britain's return to the gold standard.[12] Bank runs swept the nation after the 1929 stock market crash, while the Fed refused to engage in expansionary monetary policy, then ratcheted money market rates back up in 1931 in an effort to stabilize the gold standard.[13] President Roosevelt set out to depreciate the dollar to boost domestic prices; the Fed abandoned interest rate targeting and US deflationary pressures spread across the globe.[14] To some, the Fed seemed impotent amidst the Great Depression, the sudden shift from high unemployment to full employment during World War II led to a change of mindsets in the economics profession in favor of large government, interventionist Keynesian policies. At war's end, Americans feared a return to economic depression, and based on prevailing understandings of commodity money, the Fed was obligated to return to pegging rates.[15] Inflation rose after the war, most sharply during the Korean War as commodity prices surged due to fears of a Third World War; during this time, the Fed began a "lean-against-the-wind" policy of countercyclical monetary policy intended to stabilize the economy.[16] Under the Eisenhower administration, the Fed tried to combat inflation by dropping short-term interest rates in 1958. [17] Chairman Martin advocated for a role for monetary policy and criticized Keynesian ideas that government fiscal policy alone could create full employment.[18] In spite of the efforts to combat inflation, a period of sustained and serious inflation—dubbed the Great Inflation—lay around the bend. Under President Kennedy, the Council of Economic Advisors won out over more conservative Treasury Department officials, advocating expansionary policy under the 1946 Employment Act to achieve sustained full employment.[19] The civil unrest brought on by the Vietnam War and the civil rights movement gave credence to calls for reduced unemployment, together with President Johnson's populist avoidance of increased interest rates to finance his Great Society program.[20] A. Great Inflation, Great Moderation, and Low-Interest Rates: The State of Monetary Policy American economists commonly remark that the Fed is an "independent" central bank.[21] However, through much of the Fed's history, the Executive branch through the US Treasury Department has enjoyed considerable sway over the Fed's actions.[22] Presidents have often pressured the Fed to change the monetary policy to support Executive policy goals.[23] In a dramatic example in 1965, Chairman Martin warned Columbia University graduates in a speech about the dangers of an overheating economy.[24] President Johnson asked the Attorney General if he could fire Martin, then invited Martin to his ranch in Texas, pushing the erstwhile Fed Chair up against the wall and saying, "[M]y boys are dying in Vietnam, and you won't print the money I need."[25] In spite of such browbeating, Martin mostly maintained Fed independence.[26] But his successor under President Nixon, Chairman Arthur Burns, proved far more pliable.[27] Through a combination of in-person meetings and leaks to the press, Nixon swayed Burns to engage in an expansionary monetary policy for political gains after Burns took over the chairmanship in 1970.[28] Under Burns' watch, inflation surged to nearly fourteen percent per year.[29] The federal government had closed out the 1960s with high spending associated with President Johnson's Great Society and the Vietnam War.[30] President Nixon ended the exchange of dollars for gold by foreign central banks, thus dismantling the Bretton Woods international monetary system in-place since the end of World War II.[31] A mere two years later, in response to US support for Israel in the Yom Kippur War, Arab OPEC oil producers launched an oil embargo, quadrupling oil prices, yielding a combination of economic stagnation and inflation, famously termed "stagflation."[32] "[During the Great Inflation] the Federal Reserve accommodated large and rising fiscal imbalances and leaned against the headwinds produced by energy costs. These policies accelerated the expansion of the money supply and raised overall prices without reducing unemployment."[33] The Fed opted for a reset as the 1970s came to a close. The Great Moderation followed the Great Inflation, under the leadership of Volcker, Greenspan, and (briefly) Bernanke.[34] Economists have put forward a variety of different explanations for the era's low volatility, such as a shift to services from more volatile manufacturing, enhanced information technology, just-in-time logistics, deregulation, improved capital flows, and greater international trade.[35] [G]ood policy, especially monetary policy, is [a]. . .possible reason for the Great Moderation. Monetary policy is generally thought to have performed better during the Great Moderation than in earlier periods. After inflation climbed from below 2 percent in the mid-1960s to over 12 percent in the mid-1970s, Federal Reserve Chairman Paul Volcker brought it down and returned the focus of monetary policy to price stability, thereby laying the foundation for the Great Moderation. Rather than adhere to earlier "go-stop" methodologies, which involved loosening the money supply to combat recessions, then tightening it rapidly to fight inflation, the Federal Reserve under Volcker and his successors adopted what would later be dubbed Taylor-type rule controls, increasing the federal funds rate greater than the rate of inflation, and setting targets around inflation rates defined by policymakers. Greenspan's Fed went a step further, enhancing communication after February 4, 1994, when the Federal Open Market Committee (FOMC) began announcing policy changes, so that banks would no longer need to divine such changes themselves.[36] According to some narratives of American monetary history, the Great Moderation came to a screeching halt in the autumn of 2007 with the sub-prime mortgage crisis, which in turn spawned the 2008-2009 financial crisis.[37] Mortgage debt climbed from sixty-seven percent of GDP in 1998 to ninety-seven percent in 2007. "In the period after the 2001 recession, the Federal Open Market Committee (FOMC) maintained a low federal funds rate, and some observers have suggested that by keeping interest rates low for a “prolonged period” and by only increasing them at a “measured pace” after 2004, the Federal Reserve contributed to the expansion in housing market activity. . ." Economists disagree about the exact cause of low interest rates, in other cases pointing to savings in the developing world, rather than the federal funds rate. However, the maintenance of low interest rates likely did not help in combination with fiscal, policy, and market changes that promoted risky mortgage lending.[38] Ultra-low interest rates have predominated throughout the 2010s in response to the 2008 financial crisis, giving way to equally dramatic monetary policy prescriptions coupled with trillions in federal spending during the 2020-2021 Covid-19 pandemic.[39] The monetary response to the Covid-19 pandemic may now be triggering more traditional forms of inflation, albeit played out in unfamiliar ways, thanks to a globalized economy. B. Rules-Based Monetary Policy Researchers at the Mercatus Center at George Mason University has advocated for rules-based monetary policy.[40] An important question is whether central banks should have set rules to control what actions they may take to stabilize the economy. Such a binding rule would not need to necessarily be a strict mathematical formula, but rather a set of plans of action or contingencies.[41] Superficially, discretionary policy by monetary experts seems appealing, but thinkers like Beckworth, Taylor, and Salter have argued for the importance of rules.[42] "If the central bank could somehow commit itself to following a rule for monetary policy that it cannot later change, social welfare would improve."[43] Where the public makes assumptions about a future rate of inflation in-reliance on the central bank, the central bank has an incentive to break its promise and launch surprise expansionary monetary policy, delivering the social welfare of low inflation and low unemployment over the short-term.[44] But because the public does not believe the central bank's promise, decisionmakers incorporate anticipation of higher inflation into contracts, eliminating any reduction in unemployment.[45] A set rule would anchor expectations for market participants and not subsume decision-making to a small committee.[46] Central bankers are not immune to public and private pressures, such as Fed Chairman Arthur Burn's use of monetary policy to cater to President Nixon's political desires, and set rules would guard against this type of influence.[47] What form do rules take? In 1960, Milton Friedman famously articulated his k-percent rule, contending that the money supply should increase over fixed intervals. Friedman's view interprets variables in the real economy as the result of technological factors over the long-run. This largely autonomous approach is "intuitive[ly] appeal[ing]" because it could be accomplished with little input from Fed governors or economists.[48] But in the real world, factors informing the "k" growth rate are not fixed and could lead to miscalculations. John Taylor's Taylor rule tackled the question of rules from a different perspective in 1993. His formula indicates that if output or inflation are above a set level, the central bank should raise the target rate and constrain the money supply. "Rather than a broad money supply target, the Taylor rule can tell the monetary authority how to adjust the short-term interest rate in response to changing economic conditions, thus making it more adaptable than Friedman’s rule, at least theoretically."[49] However, there are risks if the monetary authorities set the wrong target interest rate. Perhaps the most famous monetary rule, and the only one widely implemented, is inflation targeting. But as with the other rules, inflation targeting is not without its risks. During a negative supply shock that reduces the quantity of goods and services, but not money, inflation would soon increase. But if the central bank responded by contracting the money supply it could reduce employment and output.[50] Conversely, to meet a particular inflation target, the central bank might grow the money supply potentially contributing to dangerous speculation in financial markets. Looking retrospectively at American monetary history, rules-based advocates argue for the success of rules relative to ad hoc policymaking.[51] "The late 1960s and 1970s were a period where the Federal Reserve exercised little long-term thinking and a great deal of short-term fine-tuning."[52] After a low-point during the "go-stop" era of Chairman Arthur Burns in the early 1970s, Volcker and Greenspan instituted a rule-focused era between 1985 and 2003, which was abandoned after the early 2000s.[53] Taylor presents evidence for a return to discretionary policy after the 2001 Internet bubble burst: keeping interest rates between levels implied by a rules-based approach, term auction funds in 2007 to reduce stress on the interbank market, intervening to rescue creditors of failed financial giants, and lending to Fannie Mae and Freddie Mac.[54] "The discretionary period [compared to the rules-based period] included a massive housing boom and bust with excessive risk taking, a financial crisis, and a Great Recession whose depth was much greater than any recession in the Great Moderation period. . .with economic growth averaging only 2.4%. . ."[55] However, it should be acknowledged that some critics cite Greenspan himself for policies culminating in the financial crisis, such as ineffective communication.[56] Writing in 2015 amidst the continued fallout of the 2008 recession, Norbert Michel called for Congress to require the Fed to adopt a rules-based policy and create a monetary policy commission.[57] C. Fintech Fintech, or financial technology, encompasses an ill-defined set of financial services involving digital technology. Banks were early adopters of computers and digital technology, leading some commentators to be dismissive of fintech as merely a catchy term. One commentator defined fintech as "the new breed of companies that specialize in providing financial services primarily through technologically enabled mobile and online platforms."[58] Although fintech defies easy definition, one definition identifies areas of financial activity such as payments, remittances, peer-to-peer lending, crowd-investing, point-of-sale, wealth management, and blockchain as typical of fintech companies.[59] In contrast to highly-regulated and institutional banking, fintech has enjoyed its greatest recent successes in asset management. Robo-advisors and mobile apps have helped what was already a highly-profitable industry to cut costs, automate, and manage investments more effectively than many huma advisors.[60] Equally, crowdfunding options and cryptocurrency exchanges have emerged as major focal points for the fintech industry.[61] D. Cryptocurrencies Cryptocurrencies burst onto the scene in 2008 when the elusive Satoshi Nakamoto launched Bitcoin as a private currency.[62] Founded on distributed blockchain ledgers, rather than traditional bookkeeping, cryptocurrencies have a decentralized way of tracking transactions shared by all users.[63] The "crypto" in cryptocurrency comes about because cryptocurrencies harness encryption to prevent duplication, counterfeiting, and double-spending.[64] Blockchains are essentially databases, tracking transactional data and distributing it to different computers that are the "nodes" of the decentralized network.[65] Some cryptocurrencies, particularly Bitcoin, use blockchains to create scarcity as well as a slowly growing coin supply. Special miner nodes compete to create validated transactions packaged as blocks, based on a consensus algorithm.[66] Bitcoin's "proof of work" consensus algorithm requires massive computational power, consuming substantial electricity in the process, totaling more annual consumption than many countries.[67] Phrases like "coin" and "token" are often used interchangeably, but in fact cryptocurrencies can be subdivided between currency tokens, investment tokens, and utility tokens.[68] Currency tokens like Bitcoin are perhaps the most famous cryptocurrencies and can be used to make payments.[69] By contrast, investment tokens are pegged to a fiat currency and can be directly exchanged into that currency, such as J.P. Morgan's JPM Coin.[70] Investment tokens function like stocks or shares and may be accompanied with voting rights, whereas utility tokens provide access to a service or resource.[71] Cryptocurrencies are typically issued through an initial coin offering (ICO), which can be likened to an initial public offering (IPO).[72] ICOs are often a means of raising start up funds, with new coins or tokens purchased using preexisting cryptocurrencies or fiat currency, exchanged through a digital coin wallet.[73] Unlike IPOs, ICOs are largely unregulated and are accompanied by a high risk of fraud and failure.[74] The advent of Ethereum in 2014 as both a cryptocurrency and decentralized application technology helped to spur ICOs.[75] In contrast to currency made out of intrinsically valuable material like copper, silver, or gold, today's cryptocurrencies rely on network effects not dissimilar from large technology platforms.[76] "Network effects are economies of scale derived from standardization and widespread to universal acceptance. Success of payment innovations seems unlikely until critical mass is achieved. The same holds true for money and payment systems."[77] As a result, while there are thousands of cryptocurrencies, interchangeability for many is limited and long-term prospects as competitors to traditional currency is limited. II. REGULATION ENSUES: THE RISE OF FINTECH AND CRYPTOCURRENCY A. Fintech Regulation The US is famous for its dual-banking system, with regulations at both the state and federal level.[78] The Office of the Comptroller of the Currency has taken a leading role in federal fintech regulation, proposing to create a Special Purpose National Bank (SPNB) under the authority vested in it by the National Bank Act.[79] Certain activities such as lending money, receiving deposits, or paying checks are under the jurisdiction of OCC, but it is less clear whether OCC has the power to charter non-depositary national banks.[80] Nevertheless, in 2018, OCC moved ahead with plans to charter fintechs involved in the "business of banking" as SPNBs.[81] The proposal has so far survived scrutiny in the courts. Recognizing the growing significance of fintech, the Second Circuit Court of Appeals overruled a district court ruling preventing the Office of the Comptroller of the Currency from accepting special-purpose national bank charter applications from "non-depository" fintech institutions.[82] Although OCC is the primary body involved in American fintech regulation, other federal agencies are also involved. In 2018, the Consumer Financial Protection Bureau announced a newly created Office of Innovation would review regulatory barriers facing fintech entrepreneurs.[83] Meanwhile, the Commodity Futures Trading Commission premiered LabCFTC to encourage fintech entrepreneurship in fields it oversees.[84] The Federal Trade Commission also gets involved. In 2018, FTC reached a settlement with PayPal related to deceptive practices and privacy problems with its Venmo app.[85] Operating outside of traditionally regulated banking, fintech companies have sometimes struggled as they encounter regulations. For instance, the US-based peer-to-peer lending platform, LendingClub, suspended operations for six months in 2008 due to concerns that it was not in compliance with the Securities and Exchange Act.[86] Famed crowdfunding platform, Kickstarter, also faced such concerns.[87] Because the US with its massive technology industry and venture capital resources had early advantages in fintech, the national governments of other countries have created fintech sandboxes, allowing testing under supervision from a financial regulator.[88] By 2020, sixteen different sandboxes were in operation or planned, perhaps most notably the UK Financial Conduct Authority's Project Innovate, launched in 2014.[89] B. Regulation of Cryptocurrency Cryptocurrency regulation remains comparatively light in most countries, including the US. Only New York and California have attempted to create comprehensive regulations.[90] How a coin is traded typically defines how it is regulated. CFTC has the power to regulate transactions where the coin will be delivered in the future, whereas an initial coin offering by a company to raise funds falls within the definition of a "security" under the Securities and Exchange Act of 1933.[91] The SEC applies the Howey test for ICOs. "[A]n investment contract for purposes of the Securities Act means a contract, transaction or scheme whereby a person invests his money in a common enterprise and is led to expect profits solely from the efforts of the promoter or a third party. . ."[92] Not all ICOs qualify as securities under this approach.[93] A high risk of fraud accompanies ICOs, because criminals can provide a coin claiming it is to raise funds for a business, and then disappear with actual currency, leaving investors with a valueless coin.[94] Between 2017 and 2019 there was a brief heyday for ICOs that came to an end when the Chinese central bank blocked banks from offering services related to ICOs, and Twitter, Facebook, and Google prevented ICO advertisements.[95] As a caution to ICO investors, the SEC set up the bogus HoweyCoin coin offering in May, 2018.[96] As the center of state-level financial law in the US, New York was early to step into the regulatory fray. In June, 2015, the New York Department of Financial Services began requiring BitLicense registration for new and established firms offering virtual currency.[97] However, by 2019, only sixteen companies had BitLicenses.[98] Taxation was an early frontier for cryptocurrency regulation. "The concept of a totally distributed, censorship-resistant virtual currency understandably exceeded the boundaries of what policymakers had considered thus far. Adding to the mystification were the myriad applications of blockchain technology. Cryptocurrencies were simultaneously used by different people as a kind of transaction platform, standard currency, investment vehicle, or even a complex financial instrument."[99] In 2013, the GAO recommended the IRS begin formulating cryptocurrency regulations, but the report was based primarily off of previous tax analysis of online games like World of Warcraft.[100] The IRS weighed whether to treat cryptocurrency as a foreign currency or property, which might be subject to capital gains. Based on a statutory reading, the IRS determined that cryptocurrencies like Bitcoin did not meet the definition of currency, and therefore subjected cryptocurrencies to more complex gain and loss capital gains documentation and calculation. Major coin exchanges like Coinbase have created calculators to determine changes in value, but coin owners are on their own if they switch to many smaller services.[101] Cryptocurrency regulations are also emerging in the realm of campaign finance. Multiple states treat cryptocurrency as an in-kind contribution, treated similarly to stock contributions.[102] Federal regulations are similar, with the FEC treating cryptocurrencies as in-kind contributions since 2014.[103] But the in-kind model is beginning to change, suggesting some degree of mainstream acceptance of cryptocurrencies as a form of currency. For instance, Tennessee and Colorado have recently adopted laws to treat cryptocurrencies as monetary contributions.[104] Perhaps the most unusual cryptocurrency regulatory field is environmental law, although this is largely limited to electricity-intensive Bitcoin mining. The European Commissioner for Digital Economy and Society expressed concerns about the environmental effects of cryptocurrency mining in March, 2018, but for now neither the US nor the EU has taken any regulatory action.[105] E. Stablecoins: The Quest for Stability The cryptocurrency market has been turbulent from the start, prompting the development of stablecoins, which maintain stable value relative to an official currency like the US dollar, or a valuable commodity like gold using an algorithm.[106] In 2014, Tether (originally known as Realcoin), launched as the first stablecoin, becoming the most capitalized by 2018.[107] "[W]hile stablecoins are a consequence of the emergence of cryptocurrencies, they emerged as a rather distinct phenomenon and work in a manner that can be compared to money market funds in the ecosystem of cryptocurrencies."[108] Stablecoins are perceived by some owners as a way to save more effectively in economies where interest rates have remained low for long periods of time.[109] But they have also attracted attention from central banks. Central banks have expressed interest in stablecoins as a form of central bank digital currency (CBDC). In an October, 2020 report, the European Central Bank touted a conceptual "digital euro" as a way to quickly and securely carry out daily payments.[110] The ECB went further in July, 2021, instituting a twenty-four month digital euro study.[111] For its part, China also rolled out a CBDC project in 2020, focusing on four provinces, state-owned banks, and wallets provided by fintech companies such as Tencent.[112] Japan, Estonia, and Sweden are all considering cryptocurrencies, while Venezuela launched Petro in 2018. "A government-backed digital currency could (or would, depending on the level of adoption government-backed cryptocurrencies might enjoy) be nearly equivalent to electronic cash and would be a part of the average citizen's daily life." Why are central banks suddenly interested in stablecoins and cryptocurrency more broadly? In the case of the ECB, a CBDC is seen as a way to eliminate remaining cross-border costs and rents collected by existing payment providers.[113] Attractive to both ECB and Chinese authorities is the possibility to observe private transactions, nominally to combat money laundering.[114] Additionally, the two central banks seek to compete for depositors and engage in direct monetary policy such as helicopter money drops and small loans witnessed during the COVID-19 pandemic.[115] III. PLANNING A (DE)REGULATORY FUTURE A. Implementing a Rules-Based Monetary Policy Approach: Next Steps for the Fed Based on the success of rules-based policies during prior eras of the Federal Reserve's history, Congress should require the Fed to adopt monetary policy rules and collaborate with a newly created monetary commission.[116] These new policies would serve to counterbalance discretionary monetary policy, targeting objectives like inflation, unemployment, or price levels as measured with the Consumer Price Index. However, many technological changes have occurred since the end of the Greenspan rules-based era, deepening the IT revolution that began under Chairman Volcker. The Federal Reserve must consider the monetary policy impacts of fintech and cryptocurrency. A newly created monetary commission might afford an opportunity to coordinate with federal regulatory agencies.[117] A collaboration between the Federal Reserve and regulatory agencies should strive to support fintech and cryptocurrency innovation, with light regulation that: (1) clarifies jurisdiction, (2) protects consumers and the nation from fraud, criminal financing, and systemic financial risk, (3) allows innovation and private credit creation, and (4) prevents direct federal speculation cryptocurrencies. B. Clarifying Jurisdiction Congress should devise a streamlined and centralized national law that clarifies the bounds of jurisdiction for cryptocurrencies. Currently, jurisdiction is divided in uncertain ways between Department of Justice, SEC, IRS, FinCen, CFTC, and the Secretary of the Treasury.[118] From the standpoint of the Federal Reserve, having streamlined regulations promulgated by Congress would help to shore up an area of vulnerability for the financial sector. As the value of cryptocurrencies rises, the risk of fraud or theft will increasingly threaten the stability of the economy, potentially creating an unfamiliar systemic risk for the central bank to respond to. Cryptocurrencies produce potential systemic risks, with the possibility of ripple effects to other parts of the financial system if investors lose confidence in a widely held cryptocurrency. In this way, cryptocurrencies can be likened to the instability generated by privately created bank currencies in 19th century America.[119] A national law should embrace the traditional dual-regulation of financial activities, allowing states like New York to continue with their own measures like BitLicense unless there is a compelling reason to centralize all regulation under the federal government. C. Protecting consumers and the nation from fraud, criminal financing, and systemic financial risk Most policymakers now accept the premise of some form of regulation in the financial services sector to protect customers from fraud. Barrack argues that where cryptocurrencies are concerned, regulators have a duty to (1) prevent fraud, money laundering, and criminal activity by requiring issuers and exchanges to file disclosures, (2) make information available about cryptocurrencies, and (3) make compliance "simple and straightforward."[120] This analysis is broadly correct, with some cautions about the type of reporting requirements discussed in the following section. In addition to clarifying jurisdiction, federal regulators could require certain disclosures from coin exchanges. Such a regulation could also stipulate security standards similar to those outlined in Department of Defense Impact Levels to protect investors from hackers who could raid a coin exchange.[121] "The potentially greatest threat of cryptocurrency flows directly from its originally most fervently touted, but now curiously muted, claim of advantage: secretive money transmission."[122] D. Supporting Innovation and Private Credit Creation Efforts by OCC and CFTC to cater to fintech companies are appropriate within the context of promoting free market innovation. Although there is a risk of imposing barriers on innovation, the creation of special purpose banking institutions by OCC has the benefit of removing uncertainty for fintech's in this area through a clear assertion of jurisdiction. Consumer protection and financial stability motivations both support some degree of regulation for fintechs. Congressman McHenry's ultimately unsuccessful Financial Services Innovation Act of 2016 and state-level fintech sandboxes are steps in the right direction to promote innovation.[123] Arizona's efforts to formalize a process for fintechs through statute is also a positive development.[124] One approach to fintech sandbox regulations calls for size caps, disclosure of algorithms and cybersecurity measures to regulators, and "bridge" agreements to operate in other countries.[125] Size caps are a potential barrier to innovation and regulators should welcome innovators of any size to the sandbox. Nevertheless, size considerations should come into play with fintech regulation, perhaps excluding fintechs below a certain size from regulation even if activities do amount to the "business of banking," in order to spur new developments. Congress should develop a standardized statute to clarify remaining jurisdictional questions surrounding fintech, formalize a process for interoperating with foreign fintechs, require cybersecurity measures, and encourage continual review of regulatory barriers. IV. THE CASE AGAINST A FED CENTRAL BANK DIGITAL CURRENCY Stablecoins created by the private sector are fundamentally different than CBDCs.[126] As the name suggests, stablecoins are intended to minimize risks and “bake in” stability over the long-term, offering a potentially valuable market pre-commitment, based on algorithms, commodities, and currency.[127] In a sense, stablecoins may even achieve financial goals better than the government itself, although the newness of the technology means that kinks are still being worked out.[128] By contrast, a CBDC would be an open invitation for government manipulation of the monetary supply to achieve short-term economic and political goals.[129] What follows is an analysis of the benefits and downsides of a CBDC. In a “first-best” regulatory scheme where best intentions play out in the real-world, there might be characteristics to recommend a CBDC. But in a realist’s “second-best” scenario, a CBDC appears as a dangerous alternative to private sector stablecoin innovation. For all of the discussion of CBDCs, for now governments other than Canada have proven reluctant to explore government-backed cryptocurrencies.[130] According to one interpretation, this is for the best. Writing in 2020, Goldsmith imagined a near future in which Russia skirts sanctions with an e-ruble; the US and EU in-turn respond with their own e-currencies. "[In this scenario] The near constant currency manipulation, amid global adoption of government backed cryptocurrency, results in the collapse of the international monetary system, setting the globe back nearly eighty years."[131] Further financial analysis would be needed to weigh these concerns. Under a "first-best" regulatory scheme, a sort of regulatory nirvana with few political entanglements, honest actors, and near perfect information, a CBDC might have benefits. It might allow cross-border funds transfers with essentially no fees, potentially boosting the US economy—and other national economies—through expanded commerce. A CBDC might provide low-income workers with more rapid clearing of funds, the option to transfer funds domestically or internationally without the same types of limitations applied by many banks, and reduce reliance on credit cards to make ends meet between income payments. The key argument for a CBDC is that it might make discretionary monetary policy more effective, allowing the Fed to rapidly change the value of money, and serving as a new policy tool along with quantitative easing and changing the federal funds rate. However, this does not change the fundamental problems with discretionary monetary policy and indeed encourages even more radical discretionary measures. The real world is usually a world of "second-best" regulations. Information is imperfect, the Fed and the broader federal government are subjective to wide-ranging political pressures, and limitations imposed by economic philosophy or statute. In this world, CBDC is dangerous because it opens the door to the Fed "playing god" in the economy even more than it does now, changing economic processes and usurping the market in the process. The economy is dynamic, and nitpicking tax enforcement or sudden changes to a CBDC made by the Fed would likely distort the economy in other ways, for instance with a switch of capital to real estate, physical assets, or stocks. Above all, a CBDC would further obscure the value of money, making it easy to hide expansionary or inflationary activity. Applying the ideas of rule-based monetary policy advocates, the Federal Reserve could take the lead as superintendent of the world's reserve currency and stipulate that it will not create a national government-backed cryptocurrency in any centralized regulation on the topic of cryptocurrency. Furthermore, the Federal Reserve could stipulate that no type of quantitative easing or asset purchases in the future will involve cryptocurrencies. The Federal Reserve needs to avoid the temptation of creating a CBDC, even if other central banks in Europe, Canada, Japan, China, or Russia create such a mechanism. It may be years until there is a sufficient after-action analysis of the impacts of helicopter money and CARES Act lending.[132] Although it might be appropriate for the Federal Reserve to work with commercial banks and fintech providers to improve the architecture of accounts to integrate cryptocurrencies, the Fed must be cautious not to co-opt private custodial and transfer services with any form of account-based, bearer, or token-based CBDC.[133] Central banking is a well-established melding of state and private economic functions. CBDCs may eliminate certain costs, particularly in context of the European Union, but would likely impose significant costs elsewhere. With the potential to compete with the private banking sector and private credit institutions, CBDCs as envisioned by the ECB and China threaten to usurp private credit creation.[134] Furthermore, CBDCs raise the specter of overconfident monetary policy, that is too responsive to political whims—particularly where consumers are deeply integrated with the central bank. By contrast, private sector stablecoins pegged to an existing government-backed fiat currency have none of the foregoing challenges. Private stablecoins would have much lower risks of debasing the money supply, and might even promise the kind of cross-border ease of payment touted by CBDC proponents with little of the attendant risk. In the 1970s and 1980s, during debates over the misery of “stagflation,” leading free market economists F.A. Hayek and Milton Friedman debated the idea of marketized, competing currencies.[135] Hayek wrote: “[The] convenience [of a single currency] is much less important than the opportunity to use a reliable money that will not periodically upset the smooth flow of the economy-an opportunity of which the public has been deprived by the government monopoly.” Hayek observed that denationalizing currencies would remove a powerful incentive for governments to manipulate interest rates and currency valuation.[136] Friedman countered with a defense of government involvement in currencies, within a rules-based scheme.[137] At the time of the slow-burn Hayek-Friedman debate on this topic, the idea of free-banking was pie in the sky. But with blockchain technology at the helm, today’s financial picture is different. Private cryptocurrencies, particularly private stablecoins, are rekindling the possibility of competitive currencies—but only if these technologies are not hijacked by traditional central bank monopolies. A rules-based approach that tolerates private stablecoin innovation and sets legal standards for its development, but avoids CBDC creation promises to bridge the gap between Hayek and Friedman, coming close to a “first best” regulatory scenario. CONCLUSION Fintech and cryptocurrency are here to stay. But these novel developments in the financial system must find their niche through the application of market forces and the bare minimum of regulation. The Federal Reserve must avoid the temptation of creating a CBDC and work with its Executive Branch partners to craft a minimal regulatory framework, inspired by rules-based monetary policy, that supports private sector stablecoin innovation. [1] Alexander William Salter, An Introduction to Monetary Policy Rules, 5, 2014. [2] Robert L. Hetzel, The Monetary Policy of the Federal Reserve: A History, 12 (2008). [3] Benjamin W. Cramer & Martin E. Halstuk, Crash and Learn: The Inability of Transparency Laws to Penetrate American Monetary Policy, 25 Wm. & Mary Bill Rts. J. 195, 199 (2016). [4] Cramer & Halstuk, supra, note 3, at 202. [5] Cramer & Halstuk, supra, note 3, at 203. [6] Cramer & Halstuk, supra, note 3, at 203-04. [7]See Carl Felsenfeld & Genci Bilali, Is There a Dual Banking System?, 2 J. Bus. Entrepreneurship & L. 30, 31 (2008). [8] Jesse Cowell, Fiat Taxation and Elimination of the Federal Reserve and Income Tax, 12 Lewis & Clark L. Rev. 295, 300 (2008). [9] Cowell, supra, note 3, at 301. [10] Cowell, supra, note 8, at 302. [11] Hetzel, supra, note 2, at 12. [12] Hetzel, supra, note 2, at 16. [13] Hetzel, supra, note 2, at 18. [14] Hetzel, supra, note 2, at 25; see also Target Rate Definition, Investopedia, Sept. 7, 2021, https://www.investopedia.com/terms/t/target-rate.asp. (explaining that central banks set target rates with a variety of tools, such as the federal funds rate, which can bring about changes in long-term or short-term interest rates, foreign exchange rates, and stock prices). [15] Hetzel, supra, note 2, at 35. [16] Hetzel, supra, note 2, at 40, 45. [17] Hetzel, supra, note 2, at 52, 57. [18] Hetzel, supra, note 2, at 57. [19] Hetzel, supra, note 2, at 61. [20] Hetzel, supra, note 2, at 66-66, 67. [21] Michael Saliba & Christina Parajon Skinner, Executive Override of Central Banks: A Comparison of the Legal Frameworks in the United States and the United Kingdom, 108 Geo. L.J. 905 [22] Saliba & Skinner, supra, note 21, at 945 (explaining that Fed historian Allan Meltzer believed the Fed was dominated by the Treasury for more than half of the time between 1917 and 1951). [23] Saliba & Skinner, supra, note 21, at 965. [24] Saliba & Skinner, supra, note 21, at 965. [25] Saliba & Skinner, supra, note 21, at 965. [26] Saliba & Skinner, supra, note 21, at 966. [27] Saliba & Skinner, supra, note 21, at 966. [28] Saliba & Skinner, supra, note 21, at 966. [29] Michael Bryan, The Great Inflation: 1965–1982, Federal Reserve History (Nov. 22, 2013), https://www.federalreservehistory.org/essays/great-inflation. [30] Id. [31] Id. [32] Id. [33] Id. [34] Craig S. Hakkio, The Great Moderation: 1982–2007, Federal Reserve History, (Nov. 22, 2013), https://www.federalreservehistory.org/essays/great-moderation. [35] Id. [36] Id. [37] John Weinberg, The Great Recession and its Aftermath: 2007–, Federal Reserve History, (Nov. 22, 2013), https://www.federalreservehistory.org/essays/great-recession-and-its-aftermath. [38] See Todd J. Zywicki & Gabriel Okloski, Working Paper: Housing Market Crash, 13, Mercatus Center, Sept. 2009, https://www.mercatus.org/sites/default/files/publication/wp0935_housing_market_crash.pdf. [39] Robert L. Hetzel, The Evolution of U.S. Monetary Policy, https://www.richmondfed.org/-/media/richmondfedorg/publications/research/working_papers/2018/pdf/wp18-01.pdf [FIX CITE] [40] Salter, supra, note 1, at 8-9. [41] Salter, supra, note 1, at 8-9. [42] Salter, supra, note 1, at 8-9. [43] Salter, supra, note 1, at 10. [44] Salter, supra, note 1, at 11. [45] Salter, supra, note 1, at 11. [46] Salter, supra, note 1, at 12. [47] Salter, supra, note 1, at 13. [48] Salter, supra, note 1, at 16-17. [49] Salter, supra, note 1, at 20-21. [50] Salter, supra, note 1, at 25-26. [51] See John B. Taylor, Monetary Policy Rules Work and Discretion Doesn’t: A Tale of Two Eras, 44 Journal of Money, Credit, and Banking 1017, 1017 (2012). [52] Taylor, supra note 28, at 1018. [53] Taylor, supra note 28, at 1018-19. [54] Taylor, supra note 28, at 1019; David A. Geracioti, It's All Greenspan's Fault, Registered Rep., Apr. 3, 2008, ISSN: 0193-1865. [55] Taylor, supra note 28, at 1023. [56] Robert B. Ahdieh, From Fedspeak to Forward Guidance: Regulatory Dimensions of Central Bank Communications, 50 Ga. L. Rev. 213, 218-19 (2015); [57] Norbert Michel, Why Congress Should Institute Rules-Based Monetary Policy, Heritage Foundation (2015). [58] William Magnuson, Regulating Fintech, 71 Vanderbilt L. Rev. 1167, 1173-74 (2018). [59] Amy Harriman, Playing in the Sandbox: Lessons U.S. Regulators Can Learn from the Success of Fintech Sandboxes in the United Kingdom and Australia, 37 Wis. Int'l L.J. 615, (2020). [60] Magnuson, supra note 41, at 1177-78. [61] Magnuson, supra note 41, at 1170. [62] Daniela Sonderegger, A Regulatory and Economic Perplexity: Bitcoin Needs Just a Bit of Regulation, 47 Wash. U. J. L. & Pol'y 175, 180-81 (2015). [63] Dennis Chu, Broker-Dealers for Virtual Currency: Regulating Cryptocurrency Wallets and Exchanges, 118 Colum. L. Rev. 2323, 2326 (2018). [64] Stephen Wilks, The Reimagined Schoolyard: Cryptocurrency's Adoption in Tomorrow's International Monetary Order, 2020 B.C. Intell. Prop. & Tech. F. 1, 34 (2020). [65] John W. Bagby, David Reitter, and Philip Chwistek, An Emerging Political Economy of the Blockchain: Enhancing Regulatory Opportunities, 88 UMKC L. Rev. 419, 423 (2019). [66] Bagby, Reitter, and Chwistek, supra note 40, at 424. [67] Amanda Gulli, [Un] Sustainability of Bitcoin Mining, 46 Rutgers Computer & Tech. L.J. 95, 107 (2020). [68] Matthew Barrack, Current Regulators Overseeing Cryptocurrencies Are Restricting Access to this Innovative New Technology, 26 No. 3 PIABA B.J. 453, 458 (2019). [69] Barrack, supra note 51, at 458. [70] Barrack, supra note 51, at 458. [71] Barrack, supra note 51, at 458. [72] Jake Frankenfield, Initial Coin Offering (ICO), Investopedia (Nov. 3, 2020), https://www.investopedia.com/terms/i/initial-coin-offering-ico.asp. [73] Id. [74] Id. [75] Id. [76] Bagby, Reitter & Chwistek, supra note 11, at 435. [77] Bagby, Reitter & Chwistek, supra note 11, at 435. [78] Harriman, supra note 29, at 634. [79] Office of the Comptroller of the Currency, Exploring Special Purpose National Bank Charters for FinTech Companies, 3 (Dec. 2016), https://www.occ.treas.gov/topics/responsible-innovation/comments/special-purpose-national-bank-charters-for-FinTech.pdf [https://perma.cc/JP4J-L3V3].; [80] 12 C.F.R. § 5.20(e)(1)(i).; Harriman, supra note 29, at 634. [81] Press Release, Office of the Comptroller of the Currency, OCC Begins Accepting National Bank Charter Applications from Financial Technology Companies (July 31, 2018), https://www.occ.gov/news-issuances/news-releases/2018/nr-occ-2018-74.html [https://perma.cc/947R-582U]. [82] Lacewell v. Office of Comptroller of Currency, 999 F.3d 130, 143 (2d Cir. 2021). [83] Harriman, supra note 29, at 639-40. [84] Harriman, supra note 29, at 639-40. [85] Stephen T. Middlebrook, Sarah Jane Hughes & Tom Kierner, Developments in the Law Affecting Electronic Payments and Financial Services, 74 Bus. Law. 267, 272 (2018). [86] Harriman, supra note 29, at 620-21. [87] C. Steven Bradford, Crowdfunding and the Federal Securities Laws, 2012 Colum. Bus. L. Rev. 1, 7 (2012). [88] Harriman, supra note 29, at 624-25. [89] Harriman, supra note 29, at 625. [90] Barrack, supra note 51, at 460. [91] Id. [92] S.E.C. v. W.J. Howey Co., 328 U.S. 293, 298 (1946). [93] Barrack, supra note 11, at 462-63. [94] Barrack, supra note 11, at 462-63. [95] Frankenfield, supra note 44; Financial Services: New restricted financial products policy (June 2018), Google, https://support.google.com/adspolicy/answer/7648803?hl=en (last visited Aug. 22, 2021). [96] Press Release, Securities and Exchange Commission The SEC Has an Opportunity You Won’t Want to Miss: Act Now! (May 16, 2018), https://www.sec.gov/news/press-release/2018-88 (FCC created a mock ICO named after the Hovey test for what is a security, as a way to caution investors about the risks of fraudulent ICOs). [97] NYDFS Announces Approval of First Bitlicense Application From a Virtual Currency Firm, N.Y. Dept. Fin. Serv. (Sept. 22, 2015), https://www.dfs.ny.gov/reports_and_publications/press_releases/pr1509221; N.Y. Comp. Codes. R. & Regs. tit. 23, § 200.3. [98] Barrack, supra note 11, at 478. [99] CITE ANDREA SULLIVAN REASON PIECE [100] Cite Andrea Sullivan. [101] Cite Sullivan piece. [102] Tyler Rucker, The New Frontier of Campaign Finance Regulations: Cryptocurrency, 58 U. Louisville L. Rev. 381, 393, (2020).; Or. Sec'y of State Elections Div., 2020 Campaign Finance Manual (2020). [103] FEC Advisory Op. 2014-02 (May 8, 2014), https://www.fec.gov/files/legal/aos/2014-02/2014-02.pdf. [104] Tenn. Code Ann. § 2-10-113; Rucker, supra note 11, at 394. [105] Gulli, supra note 25, at 120-23. [106] Dell'Erba, supra note 25, at 7. [107] Marco Dell'Erba, Stablecoins in Cryptoeconomics: From Initial Coin Offerings to Central Bank Digital Currencies, 22 N.Y.U. J. Legis. & Pub. Pol'y 1, 5-6 (2019). [108] Dell'Erba, supra note 25, at 7-8. [109] Iris H-Y Chiu, Central Bank Digital Currency for the Crypto-Economy: An Experimental Proposal Based on the European Single Market and Institution-Building, 51 Cal. W. Int'l L.J. 253, 262 (2021). [110] European Central Bank, Report on a Digital Euro (Oct. 2020), https://www.ecb.europa.eu/euro/html/digitaleuro.en.html. [111] European Central Bank, Eurosystem launches digital euro project (Jul. 2021), https://www.ecb.europa.eu/press/pr/date/2021/html/ecb.pr210714~d99198ea23.en.html. [112] Chiu, supra note 34, at 264. [113] Chiu, supra note 34, at 263. [114] Chiu, supra note 34, at 263. [115] Chiu, supra note 34, at 265. [116] See Michel, supra note 41. [117]See Michel, supra note 41. [118] Barrack, supra note 11, at 460. [119]Gary B. Gorton & Jeffery Zhang, Taming Wildcat Stablecoins, (Sept. 30, 2021), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3888752. [120]Matthew Barrack, Current Regulators Overseeing Cryptocurrencies Are Restricting Access to this Innovative New Technology, 26 No. 3 PIABA B.J. 453, 454 (2019). [121]See, e.g. Understanding Baselines and Impact Levels in FedRAMP, FedRAMP Blog, Nov. 16, 2017, https://www.fedramp.gov/understanding-baselines-and-impact-levels/. [122] Bagby, Reitter & Chwistek, supra note 11, at 442. [123] Harriman, supra note 29, at 640-43. [124] Ariz. Rev. Stat. §§ 41-5601-41-5621, 44.1531.01. [125] Harriman, supra note 29, at 646-47. [126]See Marissa Lee, Stablecoin: Yet Another Layer of Cryptocurrency Complexity, 38-SEP Am. Bankr. Inst. J. 36, 36 (2019). [127]Id. [128]See Adam Hayes, Stablecoin, Investopedia (Nov. 12, 2021), https://www.investopedia.com/terms/s/stablecoin.asp. [129]Jacob Goldsmith, The IMF must develop best practices before government-backed cryptocurrencies destabilize the international monetary system, 34 Emory Int'l L. Rev. 595, 596 (2020). [130]Id. [131] Id. [132] U.S. Coronavirus Aid, Relief, and Economic Security Act (CARES Act), H.R. 748, 116th Cong., § 3548 (2020). [133] Chiu, supra note 34, at 266-67. [134] Chiu, supra note 34, at 264. [135]F.A. Hayek, Denationalisation of Money—The Argument Refined 28 (1974, 3d ed. 1990), https://nakamotoinstitute.org/static/docs/denationalisation.pdf (hereinafter Denationalisation of Money); Milton Friedman & Anna J. Schwartz, Has Government Any Role in Money? NBER 289 (1987) (hereinafter Friedman & Schwartz). [136]Denationalisation of Money at 107. [137]See Friedman & Schwartz at 291-92. This report Copyright 2022, all rights reserved.

Upholding the Fifth Amendment isn’t optional. Even during Covid. That is the message a brave judge sent in a recent Florida case, striking down part of an unconstitutional Florida statute that would retroactively eliminate contract liability for universities so long as they claimed their actions were motivated by fears over coronavirus. As the owners and employees of the over 97,000 businesses that went under during 2020 can attest, widespread closures–even when mandated by government order–do not relieve a business from contractual liability.[1] Bills still need to be paid. Rent still comes due.[2] Commitments made long before the world went nuts still need to be honored, even if it means financial ruin for someone who has done nothing wrong. One class of business, though, saw itself as immune to these responsibilities. The wealthiest colleges and universities across the country, blessed with multi-million-dollar endowments and many billions in Covid relief funds, believed they were not obligated to return any of the money they collected from students after promising an in-person, on-campus experience, even revenue collected specifically as fees for on-campus services (such as a “parking fee” or “technology fee”).[3] More shockingly, many schools threatened to remove students who did not continue with online education in the fall semester, or–even worse–would make the same promises and collect the same fees as they had pre-pandemic, only to then renege again.[4] Faced with breach of contract and unjust enrichment lawsuits for their actions, a few schools—like Columbia University—agreed to settle to pay back fees, but not the tuition.[5] Most refused to even do that. Instead, universities across the nation went to court with a variety of disingenuous arguments, all of which amounted to ignoring basic contract law because of the mystique of their field of business.[6] Such appeals cater to the egos of the judges, most of whom (at least in federal courts) owe their confirmations to decorations from prestigious universities and may thus be fearful to go tugging at the base of that house of cards. Some judges, sadly, succumbed to these arguments.[7] For example, Yale and NYU-educated Judge Kevin McNulty (the brother-in-law of Senate Majority Leader Chuck Schumer), announced he would depart from traditional contract law when deciding a tuition case (in the school’s favor) because “universities are entitled to deference so that they can fulfill their educational role.”[8] Fortunately, not all judges were so easily swayed. Shaffer v. George Washington Univ, the highest profile Covid tuition case yet, was a victory for the plaintiffs.[9] There, in an opinion by veteran Judge Harry T. Edwards, the DC Circuit reversed the dismissals of suits against American and George Washington Universities, noting that applying contract law to breach of promise claims regarding tuition did “not require [the] court to subjectively value the quality of Plaintiffs’ education.”[10] Edwards expressed particular frustration that according to their pre-Covid advertisements, “the Universities themselves apparently charge different rates for online and in-person instruction.”[11] Fearing rulings like Schaffer, some universities decided to bypass the judicial system and instead use their vast political power to pressure state legislatures into simply making their problems go away. A few states, such as North Carolina and Texas, enacted immunity bills that would give universities the ability to breach their contracts whenever they felt compelled to do so by Covid.[12] This in and of itself is a policy disaster, giving the nation’s universities further avenues to dodge responsibility.[13] However, the laws contain an extra addition that goes straight to the heart of due process: They apply retroactively.[14] This means that students who have already been defrauded are stripped of their day in court. This brings us to the case of Ferretti v. Nova Southeastern University. The facts are as typical of the university Covid tuition cases as they are sad. Nova Southeastern University is a private, for-profit Florida college that boasts of its “open and truthful engagement with the community through effective communication, policies and practices.”[15] Nova offered some online classes, but charged more for its in-campus experience, boasting it offered “opportunities for contextual learning, state-of-the-art facilities, beautiful surroundings, and effective resources necessary to support learning at the highest level.”[16] In addition to charging $15,575-a-semester tuition for in-person classes, the school tacked on a number of administrative fees.[17] Among these was a $500-a-semester “Student Services Fee” meant (in their words) “to help offset university expenses for classroom technology, labs, facilities, curriculum enhancement, parking technology, and other student services.”[18] Other majors had additional costs, such as a “Microscope/Laboratory Fee” ($100) and a “Health Professions Division General Access Fee” ($145).[19] When Covid hit, Nova–in keeping with the guidelines of Governor Ron DeSantis–moved all classes online and barred students from campus.[20] Despite having made $660 million the previous year and receiving an additional $7 million in taxpayer funded Covid-relief funds, Nova did not refund tuition, nor did it return the majority of fees, including the obviously campus-specific ones just detailed.[21] Nova then decided to shut down for the next semester as well, despite DeSantis’s orders being lifted and other colleges—both in Florida and across the country—safely reopening.[22] A class action suit for breach of contract and unjust enrichment was timely filed by some of the students Nova had just cozened.[23] Significantly into litigation, in June of 2021, DeSantis signed House Bill 1261, which granted immunity for any Covid-motivated decision (regardless of whether it was legally mandated) both retroactively and going forward.[24] Nova then eagerly moved for the case to be dismissed, expecting Florida’s bill to get the same rubber stamp the judiciary has used to bless nearly every Covid-justified power grab since March 2020.[25] That did not happen. Ferretti was decided by Judge Rudy Ruiz, a former Florida state judge appointed to the federal court by President Donald Trump.[26] Instead of focusing on Covid hysteria or nonsensical “educational role” deference, Ruiz focused on the rights at issue.[27] Specifically, vested rights.[28] Vested rights are rights a party possesses that were not created by state or federal law: they are the type of rights that preexisted statutes and executive orders and the modern bureaucracy.[29] Stripping a vested right in property falls under the Fifth Amendment (incorporated to states by the Fourteenth), which promises “no person shall. . . . be deprived of life, liberty, or property, without due process.”[30] The Ferretti plaintiffs did not have some statutory entitlement promise. They had a basic contract, where they exchanged their money for an in-person school experience they did not get. Once Ruiz swept away all the Covid culture nonsense, it was apparent that the students had a vested right in getting their tuition and fees money back. This right, Ruiz concluded, was “protected by the due process clauses of the United States and Florida Constitutions.” Applying HB 1261 retroactively was federally unconstitutional. The Ferretti ruling, if upheld by higher courts, could have sweeping effects across the nation. The validity of retroactive portions of other states with tuition immunity laws are now in question. What is more, though, other states considering such a law are now on notice that such a tactic is prohibited not just by basic decency, but by the Bill of Rights. Universities pushing more lockdowns and more closures will now have to remind themselves that they may have to foot the bill. For years now, Covid has been a magic word to get courts to stop protecting individual liberties. Many in the judiciary instead allowed the wealthiest and most powerful actors to exploit a public health crisis for their own interests. Ferretti makes it clear that this is no longer the case. The Fifth Amendment is not going to be erased by a few woke colleges trying to escape their debts. [1] Lisa Fickenscher, Nearly 60 percent of Covid-19 business closures are permanent: report, Nᴇᴡ Yᴏʀᴋ Pᴏsᴛ (Sep. 17, 2020), https://nypost.com/2020/09/17/majority-of-covid-19-business-closures-are-permanent-report/. [2] SeeAlabama Ass’n of Realtors v. Dep. of Health and Human Services, 594 U.S. 1, 1-2 (2021). [3] Dougherty v. Drew Univ., 534 F. Supp. 3d 363, 383 (D.N.J. 2021), reconsideration denied sub nom. Dougherty v. Univ., No. CV2100249KMESK, 2021 WL 2310094 (D.N.J. June 7, 2021); Carter Forninash, Duke to receive more than $6 million from coronavirus economic stimulus bill, Tʜᴇ Cʜʀᴏɴɪᴄʟᴇ (April 16, 2020), https://www.dukechronicle.com/article/2020/04/duke-university-receive-6-million-coronavirus-economic-stimulus-bill (“[A]pproximately $14 billion allocated directly to higher education under the CARES Act”); Endowments, Nᴀᴛɪᴏɴᴀʟ Cᴇɴᴛᴇʀ ғᴏʀ Eᴅᴜᴄᴀᴛɪᴏɴ Sᴛᴀᴛɪsᴛɪᴄs (2021), https://nces.ed.gov/fastfacts/display.asp?id=73; see Ferretti v. Nova Southeastern Univ., Ferretti v. Nova Se. Univ., No. 20-CIV-61431-RAR, 2022 WL 471213 at *1-2 (S.D. Fla. 2022); and see Michel v. Yale Univ. 3d Amended Complaint. [4] See, e.g., Michel, 3d Amended Complaint [5] Josh Moody, Columbia Settles COVID-19 Refund Case, Iɴsɪᴅᴇ Hɪɢʜᴇʀ Eᴅ (Nov. 29, 2021), https://www.insidehighered.com/quicktakes/2021/11/29/columbia-settles-covid-19-refund-case. [6] See, e.g. Evans v. Brigham Young Univ., No. 1:20-CV-100-TS, 2022 WL 596862, at *3-4 (D. Utah Feb. 28, 2022); see also Dougherty, 534 F. Supp. 3d at 372-74; and see Michel v. Yale Univ., 547 F. Supp. 3d 179, 185-190 (D. Conn. 2021); and see Hassan v. Fordham Univ., 515 F. Supp. 3d 77, 83-88 (S.D.N.Y.), opinion amended and superseded in part, 533 F. Supp. 3d 164 (S.D.N.Y. 2021). [7] See, e.g., Evans, 2022 WL 596862, at *3-4; and see Michel v. Yale Univ., 547 F. Supp. 3d 179, 185-190 (D. Conn. 2021); see also Dougherty, 534 F. Supp. 3d at 373-74. [8] Dougherty, 534 F. Supp. 3d at 373-74, McNulty backs up his bold assertion by selectively quoting Napolitano v. Trustees of Princeton Univ., 186 N.J. Super. 548, 566, 453 A.2d 263, 272 (App. Div. 1982), a case that dealt with university leeway in administering disciplinary policy. [9] Shaffer v. George Washington Univ., No. 21-7040, 2022 WL 678086, at *6-8 (D.C. Cir. 2022). [10] Id. at 6. [11] Id. [12] See Fla. Stat. Ann. § 768.39 (West); and see S.B. 208, 2019 Leg., 2019-20 Sess. (N.C. 2020); and see S.B. 6, 2020 Special Sess. (Tex. 2020); see also H.B. 9, 2020 Leg., 1st Extraordinary Sess. (La. 2020) (enacted), for an arguable example of such a statute. [13] Prager University, Bill Maher: College Has Become an Outright Scam, YᴏᴜTᴜʙᴇ (June 10, 2021), https://www.youtube.com/watch?v=B4AOjVrxrCo. [14] See Fla. Stat. Ann. § 768.39 (West); and see S.B. 208, 2019 Leg., 2019-20 Sess. (N.C. 2020); see also and see H.B. 9, 2020 Leg., 1st Extraordinary Sess. (La. 2020) (enacted). [15] Vision, Mission, and Core Values, Nᴏᴠᴀ Sᴏᴜᴛʜᴇᴀsᴛᴇʀɴ Uɴɪᴠᴇʀsɪᴛʏ (2022), https://www.nova.edu/about/mission.html. [16] First Amended Complaint, Ferretti v. Nova Se Univ., 2020 WL 9348398 ¶ 45 (S.D.Fla.). [17] Id. at ¶ 21. [18] Id. [19] Id. at ¶ 58. [20] First Amended Complaint, Ferretti, 2020 WL 9348398 at ¶¶ 61-65; and see Renzo Downey, Gov. DeSantis orders schools closed rest of academic year, Fʟᴏʀɪᴅᴀ Pᴏʟɪᴛɪᴄs (April 19, 2020), https://floridapolitics.com/archives/328896-florida-students-will-continue-distance-learning-through-rest-of-school-year/ (“Campuses will remain closed to students for the rest of the school year as Gov. Ron DeSantis put to rest questions of whether students could be asked to finish the final month of school in person”). [21] First Amended Complaint, Ferretti, 2020 WL 9348398 at ¶¶ 5-8, 21. [22] Ferretti v. Nova Se. Univ., No. 20-CIV-61431-RAR, 2022 WL 471213, at *2 (S.D. Fla. Feb. 16, 2022); additional citations needed. [23] Id. (“Plaintiff filed his class action Complaint on July 15, 2020, followed by his FAC on September 25, 2020”). [24] Ferretti, No. 20-CIV-61431-RAR, 2022 WL 471213, at *2; Ryan Dailey, Florida Colleges are Now Shielded from COVID-19 Lawsuits, Hᴇᴀʟᴛʜ Nᴇᴡs Fʟᴏʀɪᴅᴀ (June 30, 2021), https://health.wusf.usf.edu/health-news-florida/2021-06-30/florida-colleges-are-now-shielded-from-covid-19-lawsuits. Interestingly, DeSantis has seemingly reversed his position on tuition immunity now that he signed legislation giving the universities what they want. See Jason Delgado, Gov. DeSantis: College students forced to learn online deserve tuition refunds, Fʟᴏʀɪᴅᴀ Pᴏʟɪᴛɪᴄs (Jan. 3, 2022), https://floridapolitics.com/archives/482963-gov-desantis-college-students-forced-to-learn-online-deserve-tuition-refunds/. [25] Ferretti, No. 20-CIV-61431-RAR, 2022 WL 471213, at *1; for examples of unconstitutional covid-deference, see Biden v. Missouri, 142 S. Ct. 647, 650, 211 L. Ed. 2d 433 (2022); and see Alabama Ass'n of Realtors v. Dep't of Health & Hum. Servs., 141 S. Ct. 2320 (2021); and see Calvary Chapel Dayton Valley v. Sisolak, 140 S. Ct. 2603, 207 L. Ed. 2d 1129 (2020); and see Ill Republican Party v. Pritzker, 973 F.3d 760, 762 (7th Cir. 2020), cert. denied, 141 S. Ct. 1754, 209 L. Ed. 2d 515 (2022). [26] Rodolfo Ruiz, Tʜᴇ Fᴇᴅᴇʀᴀʟɪsᴛ Sᴏᴄɪᴇᴛʏ (2022), https://fedsoc.org/contributors/rodolfo-ruiz; Tim Ryan, Judiciary Snapshot: Trump Nominees Confirmed May 1-3, Cᴏᴜʀᴛʜᴏᴜsᴇ Nᴇᴡs Sᴇʀᴠɪᴄᴇ (May 3, 2019), https://www.courthousenews.com/judiciary-snapshot-trump-nominees-confirmed-may-1-3/. [27] CompareFerretti, No. 20-CIV-61431-RAR, 2022 WL 471213, at *6; and Dougherty, 534 F. Supp. 3d at 373-74. [28] Ferretti, No. 20-CIV-61431-RAR, 2022 WL 471213, at *6. [29] Citation needed. [30] U.S. Const. amend V; U.S. Const. amend IV. References [1] Lisa Fickenscher, Nearly 60 percent of Covid-19 business closures are permanent: report, Nᴇᴡ Yᴏʀᴋ Pᴏsᴛ (Sep. 17, 2020), https://nypost.com/2020/09/17/majority-of-covid-19-business-closures-are-permanent-report/. [2] See Alabama Ass’n of Realtors v. Dep. of Health and Human Services, 594 U.S. 1, 1-2 (2021). [3] Dougherty v. Drew Univ., 534 F. Supp. 3d 363, 383 (D.N.J. 2021), reconsideration denied sub nom. Dougherty v. Univ., No. CV2100249KMESK, 2021 WL 2310094 (D.N.J. June 7, 2021); Carter Forninash, Duke to receive more than $6 million from coronavirus economic stimulus bill, Tʜᴇ Cʜʀᴏɴɪᴄʟᴇ (April 16, 2020), https://www.dukechronicle.com/article/2020/04/duke-university-receive-6-million-coronavirus-economic-stimulus-bill (“[A]pproximately $14 billion allocated directly to higher education under the CARES Act”); Endowments, Nᴀᴛɪᴏɴᴀʟ Cᴇɴᴛᴇʀ ғᴏʀ Eᴅᴜᴄᴀᴛɪᴏɴ Sᴛᴀᴛɪsᴛɪᴄs (2021), https://nces.ed.gov/fastfacts/display.asp?id=73; see Ferretti v. Nova Southeastern Univ., Ferretti v. Nova Se. Univ., No. 20-CIV-61431-RAR, 2022 WL 471213 at *1-2 (S.D. Fla. 2022); and see Michel v. Yale Univ. 3d Amended Complaint. [4] See, e.g., Michel, 3d Amended Complaint [5] Josh Moody, Columbia Settles COVID-19 Refund Case, Iɴsɪᴅᴇ Hɪɢʜᴇʀ Eᴅ (Nov. 29, 2021), https://www.insidehighered.com/quicktakes/2021/11/29/columbia-settles-covid-19-refund-case. [6] See, e.g. Evans v. Brigham Young Univ., No. 1:20-CV-100-TS, 2022 WL 596862, at *3-4 (D. Utah Feb. 28, 2022); see also Dougherty, 534 F. Supp. 3d at 372-74; and see Michel v. Yale Univ., 547 F. Supp. 3d 179, 185-190 (D. Conn. 2021); and see Hassan v. Fordham Univ., 515 F. Supp. 3d 77, 83-88 (S.D.N.Y.), opinion amended and superseded in part, 533 F. Supp. 3d 164 (S.D.N.Y. 2021). [7] See, e.g., Evans, 2022 WL 596862, at *3-4; and see Michel v. Yale Univ., 547 F. Supp. 3d 179, 185-190 (D. Conn. 2021); see also Dougherty, 534 F. Supp. 3d at 373-74. [8] Dougherty, 534 F. Supp. 3d at 373-74, McNulty backs up his bold assertion by selectively quoting Napolitano v. Trustees of Princeton Univ., 186 N.J. Super. 548, 566, 453 A.2d 263, 272 (App. Div. 1982), a case that dealt with university leeway in administering disciplinary policy. [9] Shaffer v. George Washington Univ., No. 21-7040, 2022 WL 678086, at *6-8 (D.C. Cir. 2022). [10] Id. at 6. [11] Id. [12] See Fla. Stat. Ann. § 768.39 (West); and see S.B. 208, 2019 Leg., 2019-20 Sess. (N.C. 2020); and see S.B. 6, 2020 Special Sess. (Tex. 2020); see also H.B. 9, 2020 Leg., 1st Extraordinary Sess. (La. 2020) (enacted), for an arguable example of such a statute. [13] Prager University, Bill Maher: College Has Become an Outright Scam, YᴏᴜTᴜʙᴇ (June 10, 2021), https://www.youtube.com/watch?v=B4AOjVrxrCo. [14] See Fla. Stat. Ann. § 768.39 (West); and see S.B. 208, 2019 Leg., 2019-20 Sess. (N.C. 2020); see also and see H.B. 9, 2020 Leg., 1st Extraordinary Sess. (La. 2020) (enacted). [15] Vision, Mission, and Core Values, Nᴏᴠᴀ Sᴏᴜᴛʜᴇᴀsᴛᴇʀɴ Uɴɪᴠᴇʀsɪᴛʏ (2022), https://www.nova.edu/about/mission.html. [16] First Amended Complaint, Ferretti v. Nova Se Univ., 2020 WL 9348398 ¶ 45 (S.D.Fla.). [17] Id. at ¶ 21. [18] Id. [19] Id. at ¶ 58. [20] First Amended Complaint, Ferretti, 2020 WL 9348398 at ¶¶ 61-65; and see Renzo Downey, Gov. DeSantis orders schools closed rest of academic year, Fʟᴏʀɪᴅᴀ Pᴏʟɪᴛɪᴄs (April 19, 2020), https://floridapolitics.com/archives/328896-florida-students-will-continue-distance-learning-through-rest-of-school-year/ (“Campuses will remain closed to students for the rest of the school year as Gov. Ron DeSantis put to rest questions of whether students could be asked to finish the final month of school in person”). [21] First Amended Complaint, Ferretti, 2020 WL 9348398 at ¶¶ 5-8, 21. [22] Ferretti v. Nova Se. Univ., No. 20-CIV-61431-RAR, 2022 WL 471213, at *2 (S.D. Fla. Feb. 16, 2022); additional citations needed. [23] Id. (“Plaintiff filed his class action Complaint on July 15, 2020, followed by his FAC on September 25, 2020”). [24] Ferretti, No. 20-CIV-61431-RAR, 2022 WL 471213, at *2; Ryan Dailey, Florida Colleges are Now Shielded from COVID-19 Lawsuits, Hᴇᴀʟᴛʜ Nᴇᴡs Fʟᴏʀɪᴅᴀ (June 30, 2021), https://health.wusf.usf.edu/health-news-florida/2021-06-30/florida-colleges-are-now-shielded-from-covid-19-lawsuits. Interestingly, DeSantis has seemingly reversed his position on tuition immunity now that he signed legislation giving the universities what they want. See Jason Delgado, Gov. DeSantis: College students forced to learn online deserve tuition refunds, Fʟᴏʀɪᴅᴀ Pᴏʟɪᴛɪᴄs (Jan. 3, 2022), https://floridapolitics.com/archives/482963-gov-desantis-college-students-forced-to-learn-online-deserve-tuition-refunds/. [25] Ferretti, No. 20-CIV-61431-RAR, 2022 WL 471213, at *1; for examples of unconstitutional Covid-deference, see Biden v. Missouri, 142 S. Ct. 647, 650, 211 L. Ed. 2d 433 (2022); and see Alabama Ass'n of Realtors v. Dep't of Health & Hum. Servs., 141 S. Ct. 2320 (2021); and see Calvary Chapel Dayton Valley v. Sisolak, 140 S. Ct. 2603, 207 L. Ed. 2d 1129 (2020); and see Ill. Republican Party v. Pritzker, 973 F.3d 760, 762 (7th Cir. 2020), cert. denied, 141 S. Ct. 1754, 209 L. Ed. 2d 515 (2022). [26] Rodolfo Ruiz, Tʜᴇ Fᴇᴅᴇʀᴀʟɪsᴛ Sᴏᴄɪᴇᴛʏ (2022), https://fedsoc.org/contributors/rodolfo-ruiz; Tim Ryan, Judiciary Snapshot: Trump Nominees Confirmed May 1-3, Cᴏᴜʀᴛʜᴏᴜsᴇ Nᴇᴡs Sᴇʀᴠɪᴄᴇ (May 3, 2019), https://www.courthousenews.com/judiciary-snapshot-trump-nominees-confirmed-may-1-3/. [27] Compare Ferretti, No. 20-CIV-61431-RAR, 2022 WL 471213, at *6; and Dougherty, 534 F. Supp. 3d at 373-74. [28] Ferretti, No. 20-CIV-61431-RAR, 2022 WL 471213, at *6. [29] Citation needed. [30] U.S. Const. amend V; U.S. Const. amend IV.