Indian Law Article 132 Harv. L. Rev. 1787

Federal Indian Law as Paradigm Within Public Law


U.S. public law has long taken slavery and Jim Crow segregation as a paradigm case through which to understand our constitutional law: cases adjudicating issues of slavery and segregation form the keystones of our constitutional canon. Reconstruction, or the so-called “Second Founding,” and the Civil Rights Era periodize our constitutional histories. Slavery and Jim Crow segregation supply normative lessons about the strengths and failings of our constitutional framework. This paradigm teaches that if there is too much power in the states and not enough limitation on state power in the form of national power or rights, America might again reenact similar atrocities. Although there is much to learn from the United States’ tragic history with slavery and Jim Crow segregation, resting our public law on this binary paradigm has led to incomplete models and theories. This Nation’s tragic history of colonialism and violent dispossession of Native lands, resources, culture, and even children offers different, yet equally important, lessons about our constitutional framework.

In this Article, I argue for a more inclusive paradigm that reaches beyond the black/white binary, and I highlight the centrality of federal Indian law and this Nation’s tragic history with colonialism to public law. Currently, to the extent that federal Indian law is discussed at all within public law, it is generally considered sui generis and consigned to a “tiny backwater.” While I concede that the colonial status of Native peoples and the recognition of inherent tribal sovereignty do render aspects of federal Indian law exceptional, federal Indian law and Native history have much to teach about reimagining the constitutional history of the United States. Interactions between the national government and Native Nations have shaped the warp and woof of our constitutional law from the Founding across a range of substantive areas, including vertical and horizontal separation of powers, the Treaty Clause, war powers, executive powers in times of exigency, and many others. I aim to open a conversation as to whether these doctrines ought to take their rightful place in the canon or, perhaps, the anticanon.

Beyond simple canonization, federal Indian law offers paradigmatic lessons about the strengths and failings of our constitutional framework. Broadening the binary paradigm to include federal Indian law could allow interventions into a range of general principles of public law. It has often been said that federal Indian law is “incoherent” and in need of reform, because the doctrine does not comport with general public law principles. But perhaps it is the general principles of public law, and the incomplete paradigm of slavery and Jim Crow segregation on which those principles rest, that are in need of reform.

More than simple canonization, the inclusion of federal Indian law as an additional paradigm case could lead to fundamental reformulation. A full catalogue is beyond the scope of this Article, but I offer an example here in the hope that it will invite more. As I’ll show, federal Indian law leads public law to a very different set of principles in the context of minority protection, unsettling reigning theories of how best to distribute and limit power in order to prevent government abuse of minorities. Unlike slavery and Jim Crow segregation, federal Indian law teaches that nationalism is no panacea for majority tyranny, and that rights can wound as well as shield minorities.

(Fond du Lac Band of Lake Superior Ojibwe) Assistant Professor, University of Pennsylvania Law School. This Article is dedicated to the memory of Philip P. Frickey (1953-2010), scholar and friend to Indian Country. My thanks to those generous souls who have pored over these words and offered their keen insights, among them Greg Ablavsky, Regina Austin, Monica Bell, Dorothy Brown, Josh Chafetz, Guy Charles, Cary Coglianese, Phil Deloria (Dakota), Ryan Doerfler, Laura Edwards, Bill Eskridge, Bill Ewald, Bridget Fahey, Eric Foner, Jean Galbraith, Heather Gerken, Abbe Gluck, Sally Gordon, Fred Hoxie, Pam Karlan, Doug Kiel (Oneida), Seth Kreimer, Naomi Lamoreaux, Sophia Lee, Dan Lewerenz (Iowa), Michael McConnell, Tracey Meares, Martha Mi-now, Sam Moyn, Mark Nevitt, Nick Parillo, K-Sue Park, Juan Perea, Judith Resnik, Dorothy Rob-erts, Bill Rubenstein, Ted Ruger, Miriam Seifter, Reva Siegel, Joe Singer, Fred Smith, Cathie Stru-vie, Karen Tani, Gerald Torres, and Rob Yablon. As the great Sandro Duranti once taught: “The audience is always a co-author of a text.” Thanks are due to the many audiences who joined me in collectively crafting and revising these arguments, including the Conference on Reconstruction at Duke Law School, Northwestern Law School Faculty Workshop, University of Wisconsin Law & Society Speaker Series, Culp Colloquium, Princeton Indigenous/Settler Conference, Villanova Law School Faculty Workshop, American Historical Association Annual Conference, Legislation Roundtable, University of Pennsylvania Law School Faculty Workshop, and Penn Law’s Writers Bloc(k) Workshop. Neil Deininger, Samuel McHale, and Susan Gaultier provided expert research assistance, along with fascinating discussion. Finally, I am grateful to the editorial team of the Harvard Law Review for their patient, rigorous attention to every detail during the final leg of this journey. Ned Blackhawk (Western Shoshone), ninaabem, maamawi giinawind wii-ozhichigan mino bimaadiziwin. Chi-miigwech nimaamaa gikinoo’amaage niin mashkawizii. Ndinawemaa-ganag.