Disability Law Journal

The Americans with Disabilities Act (ADA) is a statute that is largely silent regarding its application on tribal reservations. According to the traditional rules of federal Indian law, Congress must explicitly abrogate tribal sovereignty in order for a statute to be applicable on reservations. However, the Eleventh Circuit has applied the Tuscarora doctrine of the presumption of general applicability, overruling the federal Indian common law rule of explicit abrogation, and found that Title III of the ADA is applicable on tribal reservations. This paper argues that the Tuscarora doctrine is only good law because of the discriminatory backdrop against which native status has been designed and perpetuated. This paper uses two case studies to argue that the forceful application of the ADA on reservations is not the appropriate tool to ensure that tribes protect their members with disabilities. Instead, tribes must be financially empowered to continue to provide culturally appropriate services to this population for the maintenance of tribal self-government.