Constitutional Law Foreword 137 Harv. L. Rev. 1

The Constitution of American Colonialism

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For my part I am not prepared for citizenship in the United States. I do not want it. . . . It takes greed of gain to make a successful citizen of the United States.

— Walter Adair Duncan, father of the Cherokee social welfare system, in Statehood (1893)1

Thus far [I’ve written] of the dependencies whose population is in a sufficiently advanced state to be fitted for representative government; but there are others which have not attained that state, and which . . . must be governed by the dominant country . . . .

— John Stuart Mill in Considerations on Representative Government (1861)2

Introduction

The United States holds hundreds of governments in subordination. Not historically. Today. It dominates these governments and their peoples, exploits their resources, prohibits political independence, withholds representation, and imposes its own laws, values, and norms upon these governments without consent. Mere decades ago, the United States forcefully sterilized citizens of these nations3 and removed a quarter or more of Native children from their families.4 At the same time, the Supreme Court stripped these governments of the ability to police crimes in their own communities,5 unleashing widespread sexual violence and leaving more than one in three Native women vulnerable to rape.6 Just over a hundred years ago, the United States invaded these nations and held them under decades of martial law before unilaterally appointing civil governments.7 It ran detention camps on the lands of these governments8 and forced their children into boarding schools that promised to “[k]ill the Indian in [them], and save the man.”9 Federal agents beat Native children in such schools for speaking Native languages,10 held them in unsanitary conditions,11 and forced them into manual and dangerous forms of labor.12 Thousands died.13 Federal law also criminalized political and spiritual practices14 and outlawed traditional marriage and family structures.15 In the last two hundred years, the United States has engaged in campaigns of mass execution16 and slaughter against citizens of these governments to a level that many have called genocide.17

But we do not consider these problems to be problems of constitutionalism. We do not invoke this history when considering questions of good governance, citizenship, representation, the ideal design of our governing institutions, or the best distribution of power across the national government and within “our federalism.” Constitutional scholars rarely discuss the problem of American colonialism at all. We lack the very language to confront these problems in a constitutional register. Our common parlance of rights, equality, and integration fails us. Our antisubordination discourse runs out. The limits of our constitutional language are seemingly the limits of our world.18

Instead, we call the component parts of American colonialism sui generis.19 We banish each to its silo. The United States did not engage in a structured and mass campaign to remove, detain, assimilate, and destroy these governments and their peoples in the name of “civilization.” Rather, we have federal Indian law;20 the law of the territories;21 foreign relations law;22 treaty law;23 the war powers;24 and the laws of naturalization, immigration, and citizenship.25 We have the puzzle of Puerto Rico,26 the fascinating but marginalized question of Native nations,27 and the forgotten history and ongoing struggles of the state of Hawai‘i.28 All of these puzzles are seen as so illogical and alien as to withstand theorization, defy understanding, and refuse any common logic. Rather than engage with questions born of American colonialism, we have instead declared these puzzles as beyond our constitutional theory and left them to the “plenary power” of the political branches to solve.29

Yet, these colonized nations and peoples have lived on and continue to shape the government, the Constitution, and the empire we live with today.

I begin this Foreword with the observation that a body of law within the United States comprises the constitutional law of American colo­nialism.30 Conventional wisdom generally draws a distinction between constitutionalism and empire.31 A constitution is presumed to serve as the fundamental law of a nation. It is established to set and maintain borders. But it primarily focuses inward on a federalist, but unitary, legal and constitutional culture that aspires to equality, justice, republicanism, and liberal values. In this view, colonialism is constitutionalism’s opposite. Empire is outward-facing and focused not on a nation, but on expansion and conquest. It governs not through consent, but through force. Rather than create a unitary constitutional culture, colonialism fosters legal variation and constitutional pluralism.

The distinctions between the United States Constitution and colo­nialism have been overstated. Like many constitutions of empire during the eighteenth and nineteenth centuries,32 the United States Constitution had two faces33: one for the colonizing polity and the other for the colonized. The United States Constitution with which we are most familiar would govern the colonizing polity. But the Constitution would also provide the national government with the power to govern others, “Indians,” in spaces of liberal constitutional exception. In these spaces, the national government built a constitution of empire: a vast and intricate web of relationships between the central government and those it colonized. Within this outward-facing or “external” constitution,34 American colonialism has thrived — like the tentacles of an octopus,35 it constructed colonies and the jurisdictions they inhabit as the borderlands of the United States.

These borderlands are simultaneously familiar and foreign to the constitutional framework, subject to its power often without its protections.36 They are domains and peoples over which the United States has extended its jurisdiction unilaterally, often unlawfully and violently, on the grounds that the peoples within those borderlands require civilization before they achieve self-government. Paradoxically, borderlands are spaces of both subordination and empowerment.37 They are areas where “universal” rules of liberal constitutionalism apply selectively or not at all to “savages.” But they are also spaces of legal and constitutional pluralism that allow colonized peoples some powers to govern and innovate. Borderlands are where permanent “strangers” to the United States Constitution38 and their worldviews remain, denaturalizing the seemingly stable borders of empires and nations.

We have yet to reckon with the constitution of American colonialism as an aspect of our constitutional law. No doubt there have been benefits to this oversight. Treating the law of American colonialism as fractured and siloed has increased the power of small but well-organized colonized groups within the borderlands to reclaim and reshape the principles, laws, and institutions of American colonialism to their benefit.39 Lack of visibility has allowed them to work in the shadows, avoiding the backlash and retrenchment seen in areas of race, gender, and LGBTQIA+ constitutional reform.40 This invisibility would likely be lost if the national public finally began to reckon with American colo­nialism. Avoiding constitutional framing has also allowed Native advocates and their allies to craft limits to American colonialism that defy the logic of United States constitutional law writ large — these limits sound in terms of constitutional structure, rather than rights, and avoid the failures of juricentric constitutionalism seen elsewhere41 by empowering Congress to tackle the constitutional problems of American colonialism.42

The consequences of not reckoning with American colonialism include burdens as well. Most relevant for this Foreword, not recognizing the law of American colonialism as constitutional law means that limits on American colonialism may be vulnerable to challenges couched in well-established constitutional discourses, values, and doctrines.43 Unless we recognize colonialism as a distinctive struggle of fundamental practices, norms, and institutions within our society and recognize discourses around power, self-determination, sovereignty, jurisdiction, and community as a distinctive form of constitutional discourse, we leave the strategies that mitigate the American colonial project at risk of constitutional challenge.44 We face the deeply ironic situation that the constitutional values we initially elevated to reckon with other constitutional failures — especially the institution of human enslavement and Jim Crow segregation45 — might be used to further the colonial project today.

The Supreme Court put this dynamic in sharp relief this last Term when it upheld in Haaland v. Brackeen46 a law that purported to respond to the forced separation of Native children from their families and communities.47 Congress passed the law in 1978 after hearings and investigations revealed that state governments had removed approximately 100,000 Native children in the 1950s and 1960s.48 The law, the Indian Child Welfare Act of 197849 (ICWA), purported to end this policy by setting substantive standards for state courts when removing Native children from their families, including a preference to place these children with Native citizens and communities and a requirement that state governments attempt to keep Native families together.50 The law also sought to empower tribal governments by strengthening tribal jurisdiction over family law, family court capacity, and child welfare programs.51

The Supreme Court upheld the statute.52 But it did so by declining to reach the thorniest constitutional challenge to ICWA and through a ringing affirmance of the “plenary power doctrine,” which gives Congress “plenary power” over Native peoples.53 Equal protection challenges to federal Indian law were thus left for another day — keeping alive the threat that “an entire Title of the United States Code (25 U.S.C. [Indians]) would be effectively erased.”54 The result in Brackeen is thus a moment for celebration. But it is also a lesson in how far our elite institutions have yet to go before they might reckon with American colonialism.

This distance was revealed by Brackeen itself — both in the opinion and the course of the litigation. The sole reference to the mitigation of American colonialism as a constitutional value came from Justice Kavanaugh.55 He struggled in oral argument to articulate the problem in constitutional terms: “So, on the one hand, [this Court considers] the great respect for tribal self-government for the success of Indian tribes with — and Indian peoples with recognition of the history of oppression and discrimination against tribes and people.”56 Justice Kavanaugh then turned to his vision of the constitutional value on the other side, against which we should balance the value of mitigating American colonialism. His description, in many ways, revealed his preference:

On the other hand, [this Court considers] the fundamental principle we don’t treat people differently on account of their race or ethnicity or ancestry, equal justice under law, I don’t think we would ever allow, as the Court suggested in Palmore in 1984, Congress to say that white parents should get a preference for white children in adoption or that Latino parents should get a preference for Latino children in adoption proceedings. I don’t think that would be permitted under that principle of equal justice that we recognized in Palmore.57

In its only indirect reference, the mitigation of American colonialism was narrowed to a “respect for tribal self-government” and an amorphous history of “oppression and discrimination,” while the “fundamental principle” of “equal justice under law” included the broader principle that “we don’t treat people differently” on account of race and a specific, recognized doctrinal application in Palmore v. Sidoti.58 Justice Kavanaugh wrote separately in Brackeen to double down on his concerns over “bedrock equal protection principles” — omitting entirely any mention of colonialism.59

Brackeen presents an example of the Supreme Court tussling with the mitigation of American colonialism as a constitutional value. It acts as a cautionary prelude to the difficulties presented by future equal protection challenges.60 In Brackeen, the Court was asked to resolve the constitutional status of a law that was crafted specifically to mitigate paradigmatic dynamics of American colonialism.61 These dynamics were stark — in the years immediately predating the drafting and passage of the statute, state governments removed twenty-five to thirty-five percent of the next generation of Native nations.62 To scholars of empire, the removal of children from a colonized nation and forced resocialization of those children in the language, norms, and customs of the colonizing nation are easily recognizable as tools of colonization.63 Colonized nations cease to exist when stripped of their citizens.64 Because the United States purports to limit the ability of Native nations to draw new membership from beyond those who are descended from political communities historically recognized by the United States,65 taking descendant children away finally solves the “Indian Problem.”66

Rather than identifying the preservation of colonized communities as a constitutional value, the well-established constitutional discourse around “equal justice,” crafted in the aftermath of human enslavement and Jim Crow segregation,67 drove the legal arguments of advocates and, in turn, framed the issues before the Court.68 Advocates defending the constitutional status of ICWA assumed a defensive crouch, arguing against constitutional relevance.69 They argued instead that Native children were uniquely not part of racialized communities,70 that removal was not rooted in racism,71 and that federal “plenary” power was, on average, beneficial to Native nations.72 As an author of one of these briefs,73 I am free to admit the lie. As I have written elsewhere, “racial hierarchies formed whatever heart imperialism has”74 and “national power was no panacea for the subordination of Native peoples.”75 But, again, what other option are we left with when the United States does not seem able to even admit its status as empire,76 much less reckon with it as a problem of constitutional order?

Our founding myth is that we are a “nation of immigrants,”77 a myth that erases the original, Indigenous inhabitants of North America and those communities brought to these lands in chains — a myth that conceals the countless foreign nations, lands, and peoples over which the United States asserted its power to govern and dispossess, without consent or negotiation and often by force.78 It is difficult, if not foolish, to attempt to understand American history and the development of the United States without placing the constitution of American colonialism at the center of our constitutional theorization. Constitution, in this sense, takes on at least two meanings. On one hand, colonialism — or the unilateral expansion of jurisdiction over lands and peoples — was itself constituted or built through infrastructure, action, and law. On the other, the American colonial project was founded upon and continues to operate according to a range of highly contested but increasingly consistent fundamental principles.79 These are principles distinct from those governing the metropole and often inflected with racialized hierarchy as justification for dispossession, exploitation, and elimination.80 But these are also principles that have been tempered through contestation with borderlands peoples over the last two hundred years.81 Yet, because we have been unable to face the problematic and racialized doctrines that form the foundations of the constitution of American colonialism, we have abandoned colonialism to the plenary power of the political branches82 — and even theorized it as being beyond the reach of liberal constitutionalism entirely.83

Recognizing the external constitution and the American colonial project it has fostered could help us understand that the so-called “plenary power doctrine” is not constitutional law, but the absence of constitutional discourse. Instead, reliance on the plenary power of the political branches obscures the constitutional law, principles, and values of American colonialism that continue to shape our colonial relationships today, without addressing difficult questions of justification.84 It is an effort to fill the void left by the racialized hierarchy that many used to justify American colonialism and shield us from the difficult constitutional conversations that remain across the seemingly disparate, but ultimately connected “external” constitutional fields of federal Indian law,85 immigration,86 the law of the territories,87 foreign relations law,88 the treaty power,89 and the powers of war and exigency.90 Scholars have long drawn the plenary power doctrine as the common thread weaving together these fields but have puzzled over what we should make of the connection.91 I argue that the key is American colonialism — a constitution that we have yet to understand and explore.

Recognition of this external constitution and the colonial project within it could offer the means to move toward resolution of American colonialism. It could secure past efforts to mitigate the damage of colonialism through quotidian lawmaking92 and bring much-needed stability to these statutes. Federal Indian law is not alone in facing challenges. Similar constitutional challenges have been raised against the law of the territories, even this Term, calling into question the “plenary power” of the national government to regulate these other colonized peoples.93

Instead, scholars and jurists should address the constitutional questions presented by American colonialism head on. They should provide distinctive constitutional solutions. Many of these bottom-up constitutional conversations are already underway in the borderlands. Borderlands constitutionalism initially borrowed heavily from the vocabulary of the law of nations — discourses of power, disempowerment, sovereignty, self-determination, development, citizenship, and nationhood. These discourses preserved several principles, including recognition of colonized peoples as political entities, preservation of those communities, support for self-determination, respect for the borders and jurisdiction of colonized peoples, collaborative lawmaking, and principles of nonintervention, that weigh against the imposition of the laws of one people upon another. Borderlands peoples then began translating these principles into the liberal constitutional discourse of the center — most notably, by advocating for self-government and limits on the unilateral imposition of law without collaboration and consent, as well as respect for diverse legal structures and constitutional pluralism.94

Because colonized communities have long engaged in their own constitutional discourse, many modern laws of American colonialism reflect the constitutional culture or vernacular constitutionalism of colonized peoples and their advocacy over the past two hundred years — statutes like the Indian Child Welfare Act.95 Colonized peoples persuaded the political branches to codify their constitutional philosophies into law.96 Rather than simply limiting or overruling the plenary power doctrine and leaving these constitutional principles unmoored, we should recognize their contribution to our constitutional discourse. Borderlands voices provide a foundation for the constitutional conversation that will replace the plenary power doctrine in the future.

This Foreword proceeds in three Parts. The first Part begins to draw the contours of the constitution of American colonialism, starting a conversation about the metes and bounds of a new field and bringing together seemingly disparate threads of law. The second Part offers a rediscovery of our modern borderlands and explores their role in shaping our external constitution and the American colonial project embedded within it, including the vital constitutional limits secured on the American colonial project over time. Part III explores the increasing conflicts between American colonialism and the United States Constitution — most recently and most notably, in the cases of Brackeen, United States v. Vaello Madero,97 and Oklahoma v. Castro-Huerta.98 It then turns to what could be gained from reckoning with the constitution of American colonialism. The ability to better mitigate American colonialism, I argue, as well as a broader vision of constitutionalism — one that presses beyond the erroneous limit between internal and external constitutionalism toward questions over community formation, expansion, and consent that rest within our constitutional borderlands — would be the result of such a long overdue reckoning.

* (Fond du Lac Band of Lake Superior Ojibwe) Professor of Law, New York University.  This Foreword was written with and for nindinawemaaganidog, especially our Kānaka Maoli relatives who have taught me the meaning of ua mau ke ea o ka ‘āina i ka pono (the sovereignty of the land continues through justice and proper acts).  I dedicate this Foreword to my son, Evan Aaron, and to his children with the hope that they will always know mino-bimaadiziwin: Gagwe-minjimendan apane mii giinawaa aawi Newe miinawaa Anishinaabeg.  Many talented souls tempered this Foreword through the fire of their brilliance, among them Monica Bell, Ben Coates, Adam Cox, Ryan Doerfler, Yaseen Eldik, David Engerman, Sam Erman, Bill Eskridge, Barry Friedman, Abbe Gluck, Sally Gordon, Oona Hathaway, Helen Hershkoff, Hi‘ilei Hobart, Adam Hosein, Dan Hulsebosch, Sam Issacharoff, Kēhualani Kauanui, Emma Kaufman, Paul Kramer, Christina Ponsa-Kraus, Sophia Lee, Daryl Levinson, Martha Minow, Sam Moyn, Erin Murphy, Rick Pildes, Robert Post, Aziz Rana, Dorothy Roberts, Reva Siegel, and Joe Singer.  My sincere thanks for the generous research support of Helen Malley, Erica Liu, Olivia Nohealani Guarna (Kānaka Maoli), Emma Barudi, Ashlee Fox (Cherokee), Justin Cole, Andrew Hamilton, Meghan Gupta (Anishinaabe), David Kerry (Yaqui), Sophie Pu, Kyle Ranieri (Diné), and Talia Rothstein — overseen by Leah Shrestinian. Finally, I owe a great debt to the editorial team of the Harvard Law Review for shepherding this unruly draft toward publication.  Chi-miigwech, Ned Blackhawk (Western Shoshone), gizaagi’in.

Footnotes

  1. ^ W.A. Duncan, Statehood, Cherokee Advoc., Oct. 14, 1893, at 1.

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  2. ^ John Stuart Mill, Considerations on Representative Government 345 (New York, Henry Holt & Co. 1873) (1861).

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  3. ^ See, e.g., U.S. Gov’t Accountability Off., HRD-77-3, Investigation of Allegations Concerning Indian Health Service 3 (1976) (“Indian Health Service re­cords show that 3,406 sterilization procedures were performed on female Indians in the Aberdeen, Albuquerque, Oklahoma City, and Phoenix areas during fiscal years 1973–76.”). For the history of forced sterilization of Native women in the United States, see generally, for example, Brianna Theobald, Reproduction on the Reservation: Pregnancy, Childbirth, and Colonialism in the Long Twentieth Century 1, 8, 72, 86, 89–98, 147–72 (2019). For a discussion of forced sterilization in Puerto Rico, see, for example, Laura Briggs, Reproducing Empire: Race, Sex, Science, and U.S. Imperialism in Puerto Rico 107, 127, 142–61 (2002). For a discussion of forced sterilization in the United States more broadly, see generally, for example, Dorothy Roberts, Killing the Black Body: Race, Reproduction, and the Meaning of Liberty (1997); Elena R. Gutiérrez, Fertile Matters: The Politics of Mexican-Origin Women’s Reproduction (2008); Jael Silliman et al., Undivided Rights: Women of Color Organize for Reproductive Justice (Haymarket Books 2016) (2004); Rebecca M. Kluchin, Fit to Be Tied: Sterilization and Reproductive Rights in America, 1950–1980, at 73–113 (2009).

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  4. ^ See, e.g., Margaret D. Jacobs, A Generation Removed: The Fostering & Adoption of Indigenous Children in the Postwar World 93 (2014) (“[I]n most Indian communities, 25–35 percent of all Indian children were living apart from their families.”); see also Margaret D. Jacobs, White Mother to a Dark Race: Settler Colonialism, Maternalism, and the Removal of Indigenous Children in the American West and Australia, 1880–1940, at 151–70 (2009) (describing coercive federal practices used to remove Native children from their families to off-reservation boarding schools); Kathryn E. Fort, American Indian Children and the Law 3–28 (2019) (describing how federal child welfare systems became tools of mass removal of children). This history was recognized by Congress in passing the Indian Child Welfare Act of 1978 (ICWA), Pub. L. No. 95-608, 92 Stat. 3069 (codified at 25 U.S.C. §§ 1901–1963), which gave tribal governments exclusive jurisdiction over child custody proceedings involving children domiciled on a reservation in an attempt to rectify the past separation of Native children from their families, 25 U.S.C. § 1911(a).

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  5. ^ See Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 212 (1978) (holding that tribal courts “do not have inherent [criminal] jurisdiction to try and punish non-Indians”); see also Victor H. Holcomb, Prosecution of Non-Indians for Non-serious Offenses Committed Against Indians in Indian Country, 75 N.D. L. Rev. 761, 761–73 (1999) (discussing the history of punishing non-Indians committing crimes against Indians and the constitutional implications of the issue).

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  6. ^ See Amnesty Int’l, Maze of Injustice: The Failure to Protect Indigenous Women from Sexual Violence in the USA 2 (2007), https://www.amnestyusa.org/wp-content/uploads/2017/05/mazeofinjustice.pdf [https://perma.cc/4XFL-EDRL]; see, e.g., Kelly Gaines Stoner & Lauren van Schilfgaarde, Addressing the Oliphant in the Room: Domestic Violence and the Safety of American Indian and Alaska Native Children in Indian Country, 22 Widener L. Rev. 239, 240–44 (2016) (describing the implications of Oliphant for Native women and children).

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  7. ^ See Daniel Immerwahr, How to Hide an Empire: A History of the Greater United States 17 (2019); Sam Erman, Almost Citizens: Puerto Rico, The U.S. Constitution, and Empire 5 (2018); Paul A. Kramer, The Blood of Government: Race, Empire, The United States, & the Philippines 1–6, 149–51 (2006).

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  8. ^ See Stephen J. Rockwell, Indian Affairs and the Administrative State in the Nineteenth Century 263 (2010) (describing how Native people had to get passes to leave their reservations to be able to sell their produce or other products at locations off the reservation); see also, e.g., Edwin L. Chalcraft, Assimilation’s Agent: My Life as a Superintendent in the Indian Boarding School System 41–42 (Cary C. Collins ed., 2004) (recounting the development of the pass system that restricted Native mobility on the Chehalis Reservation in 1884).

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  9. ^ R.H. Pratt, The Advantages of Mingling Indians with Whites, in Proceedings of the National Conference of Charities and Correction 45, 46 (Isabel C. Barrows ed., 1892); see also David Wallace Adams, Education for Extinction: American Indians and the Boarding School Experience, 1875–1928, at 52–55 (1995) (describing the assimilationist logic behind Indian boarding schools). On the establishment of off-reservation boarding schools, see Civilization Fund Act (Indian Civilization Act), ch. 85, 3 Stat. 516 (1819) (codified at 25 U.S.C. § 271), which authorized the Executive Branch to create educational programs for Native children and appropriated ten thousand dollars annually for that purpose. See also Samantha M. Williams, Assimilation, Resilience, and Survival: A History of the Stewart Indian School, 1890–2020, at 17–26 (2022) (describing the boarding school system); Andrew Woolford, This Benevolent Experiment: Indigenous Boarding Schools, Genocide, and Redress in Canada and the United States 66–74 (2015) (discussing the “institutionalization of assimilative education as a solution to the Indian Problem,” id. at 66).

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  10. ^ See Bryan Newland, U.S. Dep’t of the Interior, Federal Indian Boarding School Initiative Investigative Report 7–8 (2022) (“The Federal Indian boarding school system deployed systematic militarized and identity-alteration methodologies to attempt to assimilate American Indian, Alaska Native, and Native Hawaiian children through education, including . . . discouraging or preventing the use of American Indian, Alaska Native, and Native Hawaiian languages . . . .” Id. at 7.); see also Williams, supra note 9, at 54 (“Howard Rogers, who attended [a boarding school] around 1915, recalled that . . . one teacher, Mr. McLean, would ‘beat the hell out of you for speaking your own language.’”).

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  11. ^ See Inst. for Gov’t Rsch., The Problem of Indian Administration 314–25 (1928) [hereinafter Meriam Report] (describing overcrowding, water contamination, and inadequate ventilation, heating, and soap in boarding schools); see also Newland, supra note 10, at 57 (describing the continued deficiencies in conditions outlined in the Meriam Report); Brenda J. Child, Boarding School Seasons: American Indian Families, 1900–1940, at 67 (1998) (“[S]erious diseases flourished in the overcrowded classrooms and dormitories. The diseases became a threat not only to the boarding school pupils but also to the reservation population as returning students carried sicknesses home.”).

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  12. ^ See Meriam Report, supra note 11, at 323, 331 (detailing how boarding schools overworked children); see also Kevin Whalen, Native Students at Work: American Indian Labor and Sherman Institute’s Outing Program, 1900–1945, at 4 (Charlotte Cotè et al. eds., 2016) (noting that labor was a way of showcasing “the progress students made in their alleged march away from Indianness and toward whiteness” and that “student laborers performed the vast majority of work as the school expanded”); Victoria K. Haskins, Matrons and Maids: Regulating Indian Domestic Service in Tucson, 1914–1934, at 2–3 (2012) (describing the placement of Indian girls and young women in homes as domestic servants).

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  13. ^ Preston Scott McBride, A Lethal Education: Institutionalized Negligence, Epidemiology, and Death in Native American Boarding Schools, 1879–1934, at iii (2020) (Ph.D. dissertation, University of California, Los Angeles) (eScholarship); see also Newland, supra note 10, at 9.

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  14. ^ See General Allotment Act, ch. 119, 24 Stat. 388 (1887) (codified as amended in scattered sections of 25 U.S.C.) (creating subdivision of landholdings within reservations designed by Indian agents, breaking apart the traditional system of land tenure and ending the Native peoples’ own systems of government); Hiram Price, U.S. Dep’t of the Interior, Off. of Indian Affs., Rules Governing the Court of Indian Offenses 3–6 (1883) (enacting the Code of Indian Offenses based upon suggestions from the Secretary of the Interior, which made specified tribal dances, uses of ritualized devices, and activities of “medicine men,” id. at 4, offenses that could result in withheld rations or incarceration).

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  15. ^ See Price, supra note 14, at 6–7 (establishing plural marriages and dowry payments as offenses under the Code of Indian Offenses, each punishable by a fine, hard labor, incarceration, or withheld rations); see also Comm’r of Indian Affs., Annual Report 213 (1888) (discussing how judges in the Court of Indian Offenses “promptly suppress and punish all cases that are against the rules, particularly plural marriages”); Comm’r of Indian Affs., Annual Report 87 (1887) (“[T]here is not now a single case of polygamy on this reservation . . . .  The court of Indian offenses has punished several offenders of this kind, and the Indians have all been notified that it is necessary to secure a divorce from the court before being permitted to marry again.”); Comm’r of Indian Affs., Annual Report 31 (1885) (“This evil [plural marriage] is gradually disappearing as the result of our Indian court of offenses . . . .”).

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  16. ^ See Ari Kelman, A Misplaced Massacre: Struggling over the Memory of Sand Creek 4 (2013) (noting that Sand Creek was “the first unit within the National Park System to label an event in which federal troops killed Native Americans a ‘massacre’”); Karl Jacoby, Shadows at Dawn: An Apache Massacre and the Violence of History 103–04, 117–18 (2009); Gary Clayton Anderson, Massacre in Minnesota: The Dakota War of 1862, The Most Violent Ethnic Conflict in American History 254–63 (2019); Claudio Saunt, Unworthy Republic: The Dispossession of Native Americans and the Road to Indian Territory 154–55, 279–81 (2021).

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  17. ^ See Benjamin Madley, An American Genocide: The United States and the California Indian Catastrophe, 1846–1873, at 7 (2016) (“Genocide is a term of awful significance, but one which has application to the story of California’s Native Americans.” (quoting William T. Hagen, How the West Was Lost, in Indians in American History: An Introduction 193 (Frederick E. Hoxie & Peter Iverson eds., 2014))); Robert Aquinas McNally, The Modoc War: A Story of Genocide at the Dawn of America’s Gilded Age 36, 86 (2017) (noting that the situation in Modoc country rose to the legal definition of genocide set by the United Nations); Brendan C. Lindsay, Murder State: California’s Native American Genocide, 1846–1873, at 3–9 (2012) (highlighting the works of various scholars on the history of California’s Native American genocide); Nick Estes, Our History Is the Future: Standing Rock Versus the Dakota Access Pipeline, And the Long Tradition of Indigenous Resistance 74–76 (2019) (describing the acts of settlers and the United States as genocide); Paul Frymer, Building an American Empire: The Era of Territorial and Political Expansion 4, 23 (2017) (describing the final years of incorporation of the Northwest Territory as “marked by what current-day internatiponal law defines as genocide,” id. at 4). See generally Jeffrey Ostler, Surviving Genocide: Native Nations and the United States from the American Revolution to Bleeding Kansas 383–87 (2019) (arguing that genocide is a part of the history of U.S. expansion).

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  18. ^ Cf. Ludwig Wittgenstein, Tractatus Logico-Philosophicus 149 (1922) (“The limits of my language mean the limits of my world.”). But, like Wittgenstein recognized in the context of language more generally, the limits of our constitutional language are not necessarily the limits of our world but reflect our limited engagement with a particular world. See Ludwig Wittgenstein, Philosophical Investigations 8 (G.E.M. Anscombe et al. eds., G.E.M. Anscombe trans., 3d ed. 1968) (defining the reach and meaning of language as captured within “language-games” played by each particular linguistic community). Following Wittgenstein, if a colonized person speaks, should we not be able to understand them?

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  19. ^ See sources cited infra notes 85–90.

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  20. ^ See, e.g., Indian Reorganization Act, ch. 576, 48 Stat. 984 (1934) (codified as amended in scattered sections of 25 U.S.C.); Indian Civil Rights Act of 1968, Pub. L. No. 90-284, tit. II, 82 Stat. 77 (codified as amended at 25 U.S.C. §§ 1301–1304); Indian Self-Determination and Education Assistance Act, Pub. L. No. 93-638, 88 Stat. 2203 (1975) (codified as amended in scattered sections of 25 and 42 U.S.C.); Indian Child Welfare Act of 1978, Pub. L. No. 95-608, 92 Stat. 3069 (codified at 25 U.S.C. §§ 1901–1963).

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  21. ^ See, e.g., Hawaiian Organic Act, ch. 339, 31 Stat. 141 (1900); Philippine Organic Act of 1902, Pub. L. No. 57-235, 32 Stat. 691; Organic Act of Puerto Rico, Pub. L. No. 64-368, 39 Stat. 951 (1917) (codified as amended in scattered sections of 48 U.S.C.); Organic Act of the Virgin Islands of the United States, Pub. L. No. 74-749, 49 Stat. 1807 (1936) (codified as amended at 48 U.S.C. §§ 1405–1406m); Organic Act of Guam, Pub. L. No. 81-630, 64 Stat. 384 (1950) (codified as amended at 48 U.S.C. §§ 1421–1424b); Revised Organic Act of the Virgin Islands, Pub. L. No. 83-517, 68 Stat. 497 (1954) (codified as amended at 48 U.S.C. §§ 1541–1644).

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  22. ^ See, e.g., Treaty with the Cherokees, Cherokee Nation-U.S., art. 7, Dec. 29, 1835, 7 Stat. 478 (documenting the unfulfilled promise to the Cherokee Nation that it be “entitled to a delegate in the House of Representatives of the United States whenever Congress shall make provision for the same”); Compact of Free Association Act of 1985, Pub. L. No. 99-239, 99 Stat. 1770 (1986) (codified as amended at 48 U.S.C §§ 1901–1912, 2001–2004) (regulating the relationship between the United States and the freely associated foreign states of the Marshall Islands and the Federated States of Micronesia and discussing the impact of the compact on U.S. territories in the Pacific); Johnson v. M‘Intosh, 21 U.S. (8 Wheat.) 543, 572–73, 585 (1823) (adopting the Doctrine of Discovery, an international law doctrine that “discovery [of land] gave title to the government by [whom] it was made, against all other European governments,” id. at 573, in the domestic context to establish national power over Indian affairs). The Executive’s power over foreign relations has been defined by the Supreme Court as “plenary.” E.g., United States v. Curtiss-Wright Exp. Corp., 299 U.S. 304, 320 (1936) (considering “the very delicate, plenary and exclusive power of the President as the sole organ of the federal government in the field of international relations”). See generally Sarah H. Cleveland, The Plenary Power Background of Curtiss-Wright, 70 U. Colo. L. Rev. 1127 (1999) (describing the roots of the plenary power doctrine in foreign relations law that preceded Curtiss-Wright).

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  23. ^ See, e.g., Treaty with the Cherokees, Cherokee Nation-U.S., Nov. 28, 1785, 7 Stat. 18; Act of Mar. 3, 1871, ch. 120, 16 Stat. 544, 566 (codified as amended at 25 U.S.C. § 71) (ending the formal process of treatymaking with Native nations via an appropriations rider); Whitney v. Robertson, 124 U.S. 190, 194 (1888) (presenting the last-in-time rule, which “place[s treaties] on the same footing . . . with an act of legislation” such that “the last one will control the other” and allows Congress to unilaterally abrogate treaties); United States v. Dion, 476 U.S. 734, 738 (1986) (quoting Fong Yue Ting v. United States, 149 U.S. 698, 720 (1893); Lone Wolf v. Hitchcock, 187 U.S. 553, 566 (1903)) (citing Lone Wolf, 187 U.S. at 566; Goldwater v. Carter, 444 U.S. 996 (1979) (mem.)) (justifying Congress’s ability to unilaterally abrogate treaties with Native nations). Treaties with Native nations at the Founding — which were more numerous than were treaties with other foreign nations — were instrumental in elaborating the meaning of the Treaty Clause. See Arthur Spirling, U.S. Treaty Making with American Indians: Institutional Change and Relative Power, 1784–1911, 56 Am. J. Pol. Sci. 84, 86 (2012) (noting the 367 treaties with Native nations between 1778 and 1868); Quincy Wright, The United States and International Agreements, 38 Am. J. Int’l L. 341, 345 (1944) (noting the 275 treaties with non-Native nations between 1789 and 1889); see also Jean Galbraith, Prospective Advice and Consent, 37 Yale J. Int’l L. 247, 258–59 (2012) (describing President Washington’s practice of consulting the Senate only after treaty negotiations with Native nations and, in doing so, defining the “advice” requirement of the Treaty Clause).

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  24. ^ See, e.g., Act of Sept. 29, 1789, ch. 25, § 5, 1 Stat. 95, 96 (authorizing the President to call forth state militias “as he may judge necessary” “for the purpose of protecting the inhabitants of the frontiers of the United States from the hostile incursions of the Indians”); Act of Aug. 7, 1789, ch. 7, § 1, 1 Stat. 49, 50 (designating the Secretary of the Department of War to perform “such duties as shall from time to time be enjoined on, or entrusted to him by the President of the United States, agreeably to the Constitution . . . relative to Indian affairs”); Leonard J. Sadosky, Revolutionary Negotiations: Indians, Empires, and Diplomats in the Founding of America 200 (2009) (describing the “Jackson Doctrine,” an outgrowth of President Jackson’s campaign against the Creek Nation during the War of 1812, as an approach to Indian affairs defined by force rather than negotiation).

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  25. ^ See, e.g., Organic Act of Puerto Rico § 5 (extending U.S. citizenship to Puerto Rico); United States v. Wong Kim Ark, 169 U.S. 649, 693 (1898) (confirming the scope of birthright citizen-ship under the Fourteenth Amendment, which “affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country”); Immigration and Nationality Act of 1952, Pub. L. No. 82-414, §§ 301–307, 66 Stat. 163, 235–38 (codified as amended at 8 U.S.C. §§ 1401–1407) (establishing that individuals born in U.S. territories are naturalized citizens of the United States); Adam B. Cox, Citizenship, Standing, and Immigration Law, 92 Calif. L. Rev. 373, 377–90 (2004) (discussing the plenary power doctrine in the context of immigration law); Consolidated Natural Resources Act of 2008, Pub. L. No. 110-229, §§ 701–705, 122 Stat. 754, 853–67 (codified as amended in scattered sections of 8 and 48 U.S.C.) (extending United States immigration law to the Northern Mariana Islands territory).

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  26. ^ See, e.g., Samuel Issacharoff et al., What Is Puerto Rico?, 94 Ind. L.J. 1, 1 (2019) (describing “the island’s ongoing crisis of constitutional identity”).

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  27. ^ See, e.g., Maggie Blackhawk, Federal Indian Law as Paradigm Within Public Law, 132 Harv. L. Rev. 1787, 1863 (2019) (“[T]he recognition of inherent tribal sovereignty and the fostering of Native self-governance should be celebrated as an innovation within our constitutional law, rath­er than marginalized.”); N. Bruce Duthu, The New Indian Wars: Tribal Sovereignty, The Courts and Judicial Violence, 144 Revue Française d’Études Américaines 78, 79–80 (2015) (arguing that “the arc of federal political activity in Indian affairs has lately tilted sharply and demonstrably in favor of tribal nations and their rights of self-governance,” id. at 79, and yet “the modern court has embraced [a] posture of judicial violence toward the tribal nations and their sovereign status,” id. at 80); Alexander Tallchief Skibine, The Supreme Court’s Last 30 Years of Federal Indian Law: Looking for Equilibrium or Supremacy?, 8 Colum. J. Race & L. 277, 282 (2018) (“[T]he Court has had difficulties upholding the federal policy of respecting tribal sovereignty and encouraging tribal self-government.”).

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  28. ^ See generally Melody Kapilialoha MacKenzie & D. Kapuaʻala Sproat, A Collective Memory of Injustice: Reclaiming Hawai‘i’s Crown Lands Trust in Response to Judge James S. Burns, 39 U. Haw. L. Rev. 481 (2017) (discussing important events in Hawaiian history often left out by non-Native historians); Brian Ireland, The US Military in Hawai‘i: Colonialism, Memory and Resistance 1–3 (2011) (describing the history of U.S. colonialism in Hawai‘i); Jon M. Van Dyke, The Political Status of the Native Hawaiian People, 17 Yale L. & Pol’y Rev. 95, 96–147 (1998) (discussing how Native Hawaiians hold a different status than Indian tribes under the law and arguing that they should be treated similarly).

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  29. ^ See generally Sarah H. Cleveland, Powers Inherent in Sovereignty: Indians, Aliens, Territories, and the Nineteenth Century Origins of Plenary Power over Foreign Affairs, 81 Tex. L. Rev. 1 (2002) (tracing the development of the plenary power doctrine in the Supreme Court as it regards both Native nations and the U.S. territories and noting that the Court has made plenary powers “relatively insulated from judicial review,” id. at 8).

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  30. ^ I use the terms “American” and “America” here and throughout to recognize and critique the imperial nature of referring to the United States of America as simply “America” — the name of two continents, not a nation. As John Locke described in 1690, “in the beginning, all the world was America,” drawing on the sense of Manifest Destiny latent in the term. John Locke, Second Treatise of Government 29 (C.B. Macpherson ed., Hackett Publ’g Co. 1980) (1690). Yet, as Professor Daniel Immerwahr documents, the term “America” arose in common usage to refer to the United States only in the twentieth century and as a response to American empire. See Immerwahr, supra note 7, at 76 (“[O]ne can search through all the messages and public papers of the presidents — including annual messages, inaugural addresses, proclamations, special messages to Congress, and much more — from the founding to 1898 and encounter only eleven unambiguous references to the country as America, about one per decade. . . . Somewhere around the turn of the century, though, all that changed.”); see also Daniel Immerwahr, When Did the US Start Calling Itself “America,” Anyway?, Mother Jones (July 4, 2019), https://www.motherjones.com/politics/2019/07/when-did-the-united-states-start-calling-itself-america-anyway [https://perma.cc/R22A-HDTB]. Thus, I use the term “American colonial project” to highlight this history and to draw attention to the ways that erasure continues to operate in our everyday language and practice.

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  31. ^ We have all benefited from the tireless work of scholars who have long committed to bringing the attention of the field to the relationship between constitutionalism and colonialism. First among them are two preeminent jurists, the late Judge Juan Torruella and Judge José Cabranes. See generally José A. Cabranes, Puerto Rico: Colonialism as Constitutional Doctrine, 100 Harv. L. Rev. 450 (1986) (book review); José A. Cabranes, Citizenship and the American Empire, 127 U. Pa. L. Rev. 391 (1978); Juan R. Torruella, Commentary, Why Puerto Rico Does Not Need Further Experimentation with Its Future: A Reply to the Notion of “Territorial Federalism,” 131 Harv. L. Rev. F. 65 (2018). Within Indian law, the late, great Professor Philip Frickey maintained that constitutionalism and colonialism were separate. He argued instead that the “incoherent” nature of federal Indian law was the product of efforts to resolve the tensions between constitutionalism and colonialism — famously defining the modern Supreme Court Indian law doctrine as “common law of colonialism.” Philip P. Frickey, (Native) American Exceptionalism in Federal Public Law, 119 Harv. L. Rev. 431, 433 (2005) [hereinafter Frickey, (Native) American Exceptionalism]; see also id. at 461. See generally, e.g., Philip P. Frickey, Marshalling Past and Present: Colonialism, Constitutionalism, and Interpretation in Federal Indian Law, 107 Harv. L. Rev. 381 (1993) [hereinafter Frickey, Marshalling Past and Present]; Philip P. Frickey, A Common Law for Our Age of Colonialism: The Judicial Divestiture of Indian Tribal Authority over Nonmembers, 109 Yale L.J. 1 (1999) [hereinafter Frickey, A Common Law for Our Age of Colonialism]; Philip P. Frickey, Domesticating Federal Indian Law, 81 Minn. L. Rev. 31 (1996). Working alongside Professor Frickey initially, Professor Sanford Levinson has pressed constitutional scholars for decades to include American expansion and the Insular Cases in the canon. See Christina Duffy Burnett, The Constitution and Deconstitution of the United States, in The Louisiana Purchase and American Expansion, 1803–1898, at 198–203 (Sanford Levinson & Bartholomew H. Sparrow eds., 2005) [hereinafter American Expansion]. See generally Sanford Levinson, Why the Canon Should Be Expanded to Include The Insular Cases and the Saga of American Expansionism, 17 Const. Comment. 241, 243 (2000). Most recently and most dazzlingly, Professor Aziz Rana has offered the field a seminal theory of the interrelationship between constitutionalism and colonialism — bringing the pathbreaking work of Professor Patrick Wolfe and the burgeoning field of settler-colonial studies to constitutional theory. See Aziz Rana, The Two Faces of American Freedom 9–10 (2010); Aziz Rana, Colonialism and Constitutional Memory, 5 U.C. Irvine L. Rev. 263, 267 (2015); Aziz Rana, Settler Wars and the National Security State, 4 Settler Colonial Stud. 171 (2014); Aziz Rana, How We Study the Constitution: Rethinking the Insular Cases and Modern American Empire, 130 Yale L.J.F. 312, 318, 330–31 (2020); Aziz Rana, Law and Empire in the American Century, 67 UCLA L. Rev. 1432, 1440–41 (2021). These scholars have fostered a growing interest by constitutional historians and theorists in the study of United States constitutionalism and colonialism. See generally, e.g., Wenona T. Singel, The First Federalists, 62 Drake L. Rev. 775 (2014); Seth Davis, Essay, American Colonialism and Constitutional Redemption, 105 Calif. L. Rev. 1751 (2017); Gregory Ablavsky, Two Federalist Constitutions of Empire, 89 Fordham L. Rev. 1677 (2021); Gregory Ablavsky, The Savage Constitution, 63 Duke L.J. 999 (2014); Matthew L.M. Fletcher, Tribal Consent, 8 Stan. J. C.R. & C.L. 45 (2012); Angela R. Riley, Indians and Guns, 100 Geo. L.J. 1675 (2012); Nell Jessup Newton, Federal Power over Indians: Its Sources, Scope, and Limitations, 132 U. Pa. L. Rev. 195 (1984).

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  32. ^ See Daniel J. Hulsebosch, Constituting Empire: New York and the Transformation of Constitutionalism in the Atlantic World, 1664–1830, at 207–08 (Thomas A. Green et al. eds., 2005); Daniel J. Hulsebosch, Imperia in Imperio: The Multiple Constitutions of Empire in New York, 1750–1777, 16 Law & Hist. Rev. 319, 321 (1998); Lauren Benton, A Search for Sovereignty: Law and Geography in European Empires, 1400–1900, at 3 (2009); Lauren Benton, Law and Colonial Cultures: Legal Regimes in World History, 1400–1900, at 21 (2001); Lauren Benton, Just Despots: The Cultural Construction of Imperial Constitutionalism, 9 Law Culture & Humans. 213, 215 (2013); Lauren Benton, Colonizing Hawai‘i and Colonizing Elsewhere: Toward a History of U.S. Imperial Law, 38 Law & Soc’y Rev. 835, 837 (2004).

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  33. ^ Reference to the “two faces” of the United States Constitution is, of course, an homage to the sweeping and seminal study of the “two faces” of “American freedom” by Rana. In The Two Faces of American Freedom, Rana documents the interrelated development of the “settler empire” of the United States alongside visions of liberty that were dependent upon dispossession of Native peoples and enslavement of human beings. Rana, supra note 31, at 9–10.

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  34. ^ As I describe throughout this Foreword, “external” is a shifting and contested category, and more often uttered to create a reality than to describe it. But I also aim here to describe and draw attention to an “external constitution” that has taken particular forms and been more and less visible at different points. See United States v. Curtiss-Wright Exp. Corp., 299 U.S. 304, 318–19 (1936) (citing Jones v. United States, 137 U.S. 202, 212 (1890); Fong Yue Ting v. United States, 149 U.S. 698, 705 (1893)) (establishing a sharp distinction between “external” constitutional powers — including “powers to acquire territory by discovery and occupation,” “the power to expel undesirable aliens,” “the power to make international agreements as do not constitute treaties in the constitutional sense,” as well as the “powers . . . to conclude peace, to make treaties, to maintain diplomatic relations with other sovereignties,” as derived from “the law of nations,” not from the Constitution and, thus, limited only by international law and not limited by domestic constitutional values and principles — and “internal” constitutional powers, id. at 318); see also George Sutherland, The Internal and External Powers of the National Government, 191 N. Am. Rev. 373, 373–74 (1910) (developing his theory of a sharp distinction between “internal” and “external” constitutional powers of the national government later codified in then-Justice Sutherland’s majority opinion in Curtiss-Wright).

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  35. ^ I draw upon Frank Norris’s “octopus” metaphor for the railroads — described by some as the infrastructure of colonialism in the West — as an apt description also of the constitutional technologies built to facilitate the American colonial project. Frank Norris, The Octopus: A Story of California 51 (1901); see Manu Karuka, Empire’s Tracks: Indigenous Nations, Chinese Workers, and the Transcontinental Railroad 144–47 (Earl Lewis et al. eds., 2019); see also Ned Blackhawk, The Tracks of Settler Colonialism, 47 Revs. Am. Hist. 564, 565 (2019) (book review).

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  36. ^ See generally Samuel Truett, Settler Colonialism and the Borderlands of Early America, 76 Wm. & Mary Q. 435 (2019); Michiel Baud & Willem van Schendel, Toward a Comparative History of Borderlands, 8 J. World Hist. 211 (1997), reprinted in Major Problems in the History of North American Borderlands 3 (Pekka Hämäläinen & Benjamin H. Johnson eds., 2012); Jeremy Adelman & Stephen Aron, Essay, From Borderlands to Borders: Empires, Nation-States, and the Peoples in Between in North American History, 104 Am. Hist. Rev. 814 (1999), reprinted in Major Problems in the History of North American Borderlands, supra, at 14; Benjamin H. Johnson & Andrew R. Graybill, Introduction: Borders and Their Historians in North America, in Bridging National Borders in North America: Transnational and Comparative Histories 1 (Benjamin H. Johnson & Andrew R. Graybill eds., 2010), reprinted in Major Problems in the History of North American Borderlands, supra, at 26; Mary L. Dudziak & Leti Volpp, Introduction, in Legal Borderlands: Law and the Construction of American Borders 1 (Mary L. Dudziak & Leti Volpp eds., 2006); Devon W. Carbado, Racial Naturalization, 57 Am. Q. 633 (2005), reprinted in Legal Borderlands: Law and the Construction of American Borders, supra, at 41. For an exploration of the legal and political liminality of borderlands peoples attempting to leave the borderlands through the Supreme Court case of Gonzales v. Williams, 192 U.S. 1 (1904), see Sam Erman, Meanings of Citizenship in the U.S. Empire: Puerto Rico, Isabel Gonzalez, and the Supreme Court, 1898 to 1905, 27 J. Am. Ethnic Hist. 5, 5–8 (2008).

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  37. ^ To many, borderlands that empower may appear paradoxical. But to scholars of empire, “local agency in the form of collaboration has long been understood as central to the construction and dynamics of imperial systems.” Paul A. Kramer, Essay, Power and Connection: Imperial Histories of the United States in the World, 116 Am. Hist. Rev. 1348, 1381 n.89 (2011) (surveying the literature).

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  38. ^ The term “strangers” is derived here from the work of Professor Michael Walzer, one of the few liberal philosophers to understand the constitution of a political community — most sharply between “members” and “strangers” — as raising questions central to constitutionalism. See Michael Walzer, Spheres of Justice: A Defense of Pluralism and Equality 31–63 (2008); see also Gerald L. Neuman, Strangers to the Constitution: Immigrants, Borders, and Fundamental Law 72–73 (1996) (discussing how constitutional law interacted with the nation as it expanded). The phrase “strangers to the constitution” was coined by Professor Gerald Neuman, drawing upon the work of Walzer to discuss questions of how the Constitution related to “strangers” or individuals outside the “social contract” or designated political community at the heart of constitutional theorization. See Neuman, supra, at 3; Gerald L. Neuman, Whose Constitution?, 100 Yale L.J. 909, 943–64 (1991). Neuman identified a “stranger to the constitution” as an individual deprived of the protections of the Constitution and, because of that deprivation, similarly stripped of the ability to participate in constitutional discourse to formally shape or dissent from that constitutional order. Neuman, supra, at 3.

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  39. ^ See, e.g., Maggie Blackhawk, Legislative Constitutionalism and Federal Indian Law, 132 Yale L.J. 2205, 2219 (2023) (describing “the tactics, successes, and failures of Native advocates and their allies as they have forced Congress to recognize the constitutional failures of American colonialism and to mitigate these failures by treaty, statute, and regulation” in the context of federal Indian law); Alexandra Harmon, Reclaiming the Reservation: Histories of Indian Sovereignty Suppressed and Renewed 8–9 (2019) (discussing the tribal movements toward reclaiming sovereignty despite Supreme Court decisions like Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978)); Maggie Blackhawk, On Power and the Law: McGirt v. Oklahoma, 2020 Sup. Ct. Rev. 367, 373–74 (2021) [hereinafter Blackhawk, On Power and the Law].

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  40. ^ For further discussion of the “reform/retrenchment dialectic,” see Devon W. Carbado, Afterword, Critical What What?, 43 Conn. L. Rev. 1593, 1607–08 (2011). See also Kimberlé Williams Crenshaw, Race, Reform, and Retrenchment: Transformation and Legitimation in Antidiscrimination Law, 101 Harv. L. Rev. 1331, 1363 (1988) (critiquing one scholar’s failure to adequately analyze a “race-specific explanation of affirmative action retrenchment”); Kyler J. Palmer, Bostock, Backlash, and Beyond the Pale: Religious Retrenchment and the Future of LGBTQ Antidiscrimination Advocacy in the Wake of Title VII Protection, DePaul J. for Soc. Just., Winter/Spring 2021–2022, at 114, 161 (discussing trends of religious retrenchment following the expansion of Title VII protections under Bostock v. Clayton County, 140 S. Ct. 1731 (2020)).

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  41. ^ See Robert C. Post & Reva B. Siegel, Protecting the Constitution from the People: Juricentric Restrictions on Section Five Power, 78 Ind. L.J. 1, 41 (2003).

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  42. ^ Blackhawk, Legislative Constitutionalism and Federal Indian Law, supra note 39, at 2216 (“Rather than packaging claims in terms of positive or negative rights and liberties, Native advocates have been able to directly address constitutional failures of representation, faulty structures of government, and the distribution of power. Most central to the mitigation of American colonialism, Congress offers Native advocates the promise of constitutional reforms in terms of ‘structure’ . . . .” (footnotes omitted)).

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  43. ^ See Brief of Individual Respondents at 1, Haaland v. Brackeen, 143 S. Ct. 1609 (2023) (Nos. 21-376, 21-377, 21-378 & 21-380) (framing the question presented as whether the Indian Child Welfare Act of 1978 (ICWA), Pub. L. No. 95-608, 92 Stat. 3069 (codified at 25 U.S.C. §§ 1901–1963), is “unconstitutional on Article I, anticommandeering, equal-protection, and nondelegation grounds”).

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  44. ^ See, e.g., id. (challenging ICWA on constitutional grounds).

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  45. ^ See, e.g., Dorothy E. Roberts, The Supreme Court, 2018 Term — Foreword: Abolition Constitutionalism, 133 Harv. L. Rev. 1, 63–64 (2019) (describing the making of constitutional meaning by Black freedom activists and their role in formal and informal amendment of the Constitution).

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  46. ^ 143 S. Ct. 1609.

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  47. ^ Id. at 1623 (quoting ICWA § 1901(4)); Transcript of Oral Argument at 103, Brackeen, 143 S. Ct. 1609 (Nos. 21-376, 21-377, 21-378 & 21-380), https://www.supremecourt.gov/oral_arguments/argument_transcripts/2022/21-376_k536.pdf [https://perma.cc/S7J9-2ABU].

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  48. ^ See 124 Cong. Rec. 38102 (1978) (statement of Rep. Robert Lagomarsino) (“The record of nearly 5 years of congressional oversight on Indian child placements and adoptions shows a dis­proportionately high percentage of Indian families are broken up by the removal, often unwarranted, of their children by nontribal public and private agencies. More than 62,000 of the estimated 250,000 children whose parents live on or near reservations are currently in foster care or adoptive homes or institutions. Including those whose families live in urban areas or with rural nonrecognized tribes, the number is closer to 100,000 children.”); see also Indian Child Welfare Act of 1977: Hearing on S. 1214 Before the U.S. S. Select Comm. on Indian Affs., 95th Cong. 1 (1977) (statement of Sen. James Abourezk, Chairman, S. Select Comm. on Indian Affs.) (“Recent statistics show, for example, that a minimum of 25 percent of all Indian children are either in foster homes, adoptive homes, and/or boarding schools, against the best interest of families and Indian communities.”).

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  49. ^ Pub. L. No. 95-608, 92 Stat. 3069 (codified at 25 U.S.C. §§ 1901–1963).

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  50. ^ See ICWA § 105(a) (“In any adoptive placement of an Indian child under State law, a preference shall be given, in the absence of good cause to the contrary, to a placement with (1) a member of the child’s extended family; (2) other members of the Indian child’s tribe; or (3) other Indian families.”). But see Russel Lawrence Barsh, The Indian Child Welfare Act of 1978: A Critical Analysis, 31 Hastings L.J. 1287, 1288 (1980) (arguing that ICWA’s effectiveness is limited because of ambiguity in the law, which may exacerbate the issues it addressed).

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  51. ^ See ICWA § 101 (recognizing tribal courts’ exclusive jurisdiction over certain child custody proceedings involving Indian children).

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  52. ^ Brackeen, 143 S. Ct. at 1623.

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  53. ^ See id. at 1627, 1638.

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  54. ^ Morton v. Mancari, 417 U.S. 535, 552 (1974).

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  55. ^ Transcript of Oral Argument, supra note 47, at 94.

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  56. ^ Id.

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  57. ^ Id. at 95.

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  58. ^ 466 U.S. 429, 430, 434 (1984) (holding that a child could not be removed from her birth mother on the grounds that the white mother had married a Black man).

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  59. ^ Haaland v. Brackeen, 143 S. Ct. 1609, 1661 (2023) (Kavanaugh, J., concurring).

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  60. ^ Difficulties caused by equal protection challenges are not limited to Indian Country, but could have negative implications across the borderlands. See Sam Erman, Status Manipulation and Spectral Sovereigns, 53 Colum. Hum. Rts. L. Rev. 813, 836–37 (2022) (noting that “American Samoa is right to worry,” id. at 836, about an equal protection challenge to its traditional forms of government and life, rooted in communal land holdings led by family clan leaders called matai, and surveying recent constitutional challenges to these institutions and practices). For more on forms of government in Samoa writ large, see Alessandro Duranti, From Grammar to Politics: Linguistic Anthropology in a Western Samoan Village 1–12 (1994) (describing the forms of government in Western Samoa, the fono in particular, and exploring the “ethnopragmatics” — or the study of pragmatics within cultural contexts — of Samoan political and linguistic practice).

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  61. ^ Brackeen, 143 S. Ct. at 1623; see also sources cited infra note 63 (discussing child removal as a tool of colonization).

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  62. ^ See H.R. Rep. No. 95-1386, at 9 (1978) (“[A]pproximately 25–35 percent of all Indian children are separated from their families and placed in foster homes, adoptive homes, or institutions.”).

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  63. ^ See, e.g., Christina Firpo & Margaret Jacobs, Taking Children, Ruling Colonies: Child Removal and Colonial Subjugation in Australia, Canada, French Indochina, and the United States, 1870–1950s, 29 J. World Hist. 529, 531 (2018) (arguing that recognizing “child removal as a colonial tactic offers crucial insights into how colonial authorities gained and sustained power through intervention into the intimate lives of colonial subjects”); Adams, supra note 9, at 53–54 (describing the forced resocialization of children through boarding schools as an assimilationist tool of colonization). See generally Robert A. Trennert, Jr., The Phoenix Indian School: Forced Assimilation in Arizona, 1891–1935, at 3–4 (1988) (highlighting one example of how the national assimilation policy was enacted through the creation and tenure of the Phoenix Indian School).

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  64. ^ Janine Jackson, “A Crucial Part of Colonization Is Taking Our Children,” FAIR (Dec. 13, 2022), https://fair.org/home/a-crucial-part-of-colonization-is-taking-our-children [https://perma.cc/H5K5-H674] (interviewing Jen Deerinwater, Founding Executive Director of Crushing Colonialism, who noted: “[A] crucial part of colonization, of the genocide of Indigenous people, is taking our children. If you take away our future generations, then we cease to exist as Indigenous people and as sovereign nations . . . .”). See generally Robert B. Porter, The Demise of the Ongwehoweh and the Rise of the Native Americans: Redressing the Genocidal Act of Forcing American Citizenship upon Indigenous Peoples, 15 Harv. BlackLetter L.J. 107, 161–83 (1999) (discussing the con­sequences of American citizenship for Indigenous peoples and the genocidal nature of forced American citizenship).

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  65. ^ See United States v. Rogers, 45 U.S. (4 How.) 567, 569 (1846) (adopting the view that “no white man can rightfully become a citizen of the Cherokee tribe of Indians, either by marriage, residence, adoption, or any other means”); see also 25 C.F.R. § 83.11(e) (2022) (requiring that a Native nation’s “membership consist[] of individuals who descend from a historical Indian tribe” in order to receive federal recognition).

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  66. ^ See Meriam Report, supra note 11, at 429 (“[I]n the past forty or fifty years a body of experience in both education and social work has developed that can and should be applied in order to speed up the solution of the Indian problem.”).

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  67. ^ Transcript of Oral Argument, supra note 47, at 95 (discussing the principle of “equal justice” in Palmore v. Sidoti).

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  68. ^ For example, Matthew D. McGill, counsel for Chad Everet Brackeen and others, argued that ICWA “flouts the promise of equal justice under the law.” Id. at 5.

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  69. ^ See, e.g., Brief of Amici Curiae American Historical Association and Organization of American Historians in Support of Federal and Tribal Parties at 7–11, Haaland v. Brackeen, 143 S. Ct. 1609 (2023) (Nos. 21-376, 21-377, 21-378 & 21-380) [hereinafter Brief of Amici Curiae AHA and Organization of American Historians] (arguing that the federal government has long regulated Native families and children without constitutional issue).

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  70. ^ Federal Appellants’ En Banc Brief at 1, Brackeen v. Bernhardt, 937 F.3d 406 (5th Cir. 2019) (No. 18-11479) (“ICWA’s protections are triggered not by any individual’s race but rather by the political fact of membership in a federally recognized tribe.”); see also id. at 27–32 (arguing that the challenged provisions of ICWA draw upon political, not racial, classifications); Petition for a Writ of Certiorari at 12, 26, Brackeen, 143 S. Ct. 1609 (No. 21-376) (urging the Supreme Court to hold that “ICWA’s Indian-based classifications are political, not racial, classifications”).

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  71. ^ See Brief of Amici Curiae AHA and Organization of American Historians, supra note 69, at 23–25 (describing the “fiscal concerns” underlying Native child removal in the mid-twentieth century, as opposed to the influence of “a long-standing federal policy of assimilation and racism,” id. at 23).

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  72. ^ See Transcript of Oral Argument, supra note 47, at 167 (“From the beginning, the . . . plenary power doctrine was used to protect Indians from non-Indians.”).

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  73. ^ See Brief of Amici Curiae AHA and Organization of American Historians, supra note 69, at 1–2.

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  74. ^ Blackhawk, supra note 27, at 1861.

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  75. ^ Id. at 1797–98.

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  76. ^ Id. at 1794 n.14 (citing Lisa Kahaleole Hall, Strategies of Erasure: U.S. Colonialism and Native Hawaiian Feminism, 60 Am. Q. 273, 275 (2008) (“The myth of a (mostly) empty North American continent waiting for (European) settlement and ‘development’ is foundational to the origin story of the United States as a ‘nation of immigrants’ developing an untamed wilderness. This continental origin story requires the denial of more than five hundred years of contrary facts beginning with the existence of millions of indigenous people inhabiting North America at the time of European contact and continuing through to the present with the struggles of more than 562 currently federally recognized tribal entities fighting to maintain their limited sovereignty and promised treaty rights in the context of complete public ignorance and complaints about their ‘special rights.’”); Patrick Wolfe, Settler Colonialism and the Elimination of the Native, 8 J. Genocide Rsch. 387, 388 (2006) (“The logic of elimination . . . is an organizing principle of settler-colonial society rather than a one-off (and superseded) occurrence. The positive outcomes of the logic of elimination can include officially encouraged miscegenation, the breaking-down of native title into alienable individual freeholds, native citizenship, child abduction, religious conversion, resocialization in total institutions such as missions or boarding schools, and a whole range of cognate bicultural assimilations. . . . Settler colonialism destroys to replace.” (footnotes omitted))) (surveying the literature on the erasure of colonialism).

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  77. ^ See Hall, supra note 76, at 275.

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  78. ^ Constitutional memory often diverges from constitutional history in ways that manufacture authority and consent. See Reva B. Siegel, The Politics of Constitutional Memory, 20 Geo. J.L. & Pub. Pol’y 19, 23–24 (2022); Reva B. Siegel, Memory Games: Dobbs’s Originalism as Anti-Democratic Living Constitutionalism — Some Pathways for Resistance, 101 Tex. L. Rev. 1127, 1180–93 (2023) (discussing how the Dobbs majority “ventriloquize[d] historical sources,” id. at 1184, to justify overruling Roe); Reva B. Siegel, Collective Memory and the Nineteenth Amendment: Reasoning About “the Woman Question” in the Discourse of Sex Discrimination, in History, Memory, and the Law 131, 141 (Austin Sarat & Thomas R. Kearns eds., 1999) (detailing how “social memory . . . is shaped by acts of constitutional interpretation”).

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  79. ^ See infra note 113 and accompanying text.

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  80. ^ See infra note 113 and accompanying text.

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  81. ^ See infra section II.B., pp. 81–89.

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  82. ^ See infra section I.B., pp. 53–66.

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  83. ^ The statement from John Stuart Mill that opens this Foreword is illustrative of a liberal constitutional theory that created exception from its universal application to justify colonialism. See, e.g., Mill, supra note 2, at 345 (“Thus far [I’ve written] of the dependencies whose population is in a sufficiently advanced state to be fitted for representative government; but there are others which have not attained that state, and which . . . must be governed by the dominant country, or by persons delegated for that purpose by it.”). Mill’s statement was exemplary of the “liberal developmentalism” of his era — that is, the idea that liberalism was universal, except for those peoples deemed “uncivilized” and who would need to undertake a period of development to civilize them into the ability of self-government. See generally, e.g., William Hazlitt, The Spirit of the Age, Or Contemporary Portraits (William Hazlitt ed., London, C. Templeman 3d ed. 1858). Liberal developmentalism was a position Mill espoused even more firmly elsewhere. See, e.g., John Stuart Mill, A Few Words on Non-intervention, 60 Fraser’s Mag. 766, 772 (1859), reprinted in The Spirit of the Age: Victorian Essays 157, 166 (Gertrude Himmelfarb ed., 2007) (“[N]ations which are still barbarous have not got beyond the period during which it is likely to be for their benefit that they should be conquered and held in subjection by foreigners.”).

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  84. ^ See Newton, supra note 31, at 197 (“History reveals that the original reasons for the doctrine are no longer applicable. . . . The music has stopped, but the melody lingers on.”).

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  85. ^ See Frickey, (Native) American Exceptionalism, supra note 31, at 436 (suggesting that “the Supreme Court has become increasingly troubled by . . . the extent to which [federal Indian law’s] doctrines deviate from general principles of American law”).

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  86. ^ See Neuman, supra note 38, at 13 (“Immigration law has become an isolated specialty within American law, where normal constitutional reasoning does not necessarily apply.”).

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  87. ^ See Christina Duffy Ponsa-Kraus, The Insular Cases Run Amok: Against Constitutional Exceptionalism in the Territories, 131 Yale L.J. 2449, 2455 (2022) (describing the “standard account” of the Insular Cases creating a “nearly extraconstitutional zone for the unincorporated territories” of Puerto Rico, Guam, American Samoa, the Northern Mariana Islands, and the Virgin Islands).

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  88. ^ See Curtis A. Bradley, International Delegations, The Structural Constitution, and Non-Self-Execution, 55 Stan. L. Rev. 1557, 1582–83 (2003) (“Foreign affairs exceptionalism is the idea that foreign affairs powers should be subject to different, and generally more relaxed, constitutional restraints than domestic powers.”); Ganesh Sitaraman & Ingrid Wuerth, The Normalization of Foreign Relations Law, 128 Harv. L. Rev. 1897, 1900 (2015) (describing the rise of “foreign relations exceptionalism” at the beginning of the twentieth century and its shift from a field of constitutional law to a field of international law).

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  89. ^ See Curtis A. Bradley, The Treaty Power and American Federalism, 97 Mich. L. Rev. 390, 393–94 (1998) (describing the “conventional wisdom” around treaty law as “treaty power exceptionalism” from certain constitutional limits, including federalism); see also Jean Galbraith, Response, Treaty Termination as Foreign Affairs Exceptionalism, 92 Tex. L. Rev. See Also 121, 123 (2014) (defining treaty power exceptionalism as the “specialized constitutional practice in the context of foreign affairs” specifically involving treaty termination).

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  90. ^ See Charles E. Hughes, War Powers Under the Constitution, 2 Marq. L. Rev. 3, 4 (1917) (calling the war powers exercised by the political branches “plenary”); John C. Yoo, The Continuation of Politics by Other Means: The Original Understanding of War Powers, 84 Calif. L. Rev. 167, 172 (1996) (identifying that there is “an unusual arrangement of ideology and constitutional interpretation” in the context of declaring war). See generally Janet Cooper Alexander, John Yoo’s War Powers: The Law Review and the World, 100 Calif. L. Rev. 331 (2012) (describing the influence of Professor John Yoo’s broad definition of executive power in war on the Bush Administration).

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  91. ^ See Cleveland, supra note 29, at 13–15 (noting that the plenary power doctrine underlies Indian, territorial, and immigration law, but that scholars “had generally overlooked the interrelationship,” id. at 13, between these fields of law).

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  92. ^ See 25 U.S.C. (entitled “Indians”).

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  93. ^ See Fin. Oversight & Mgmt. Bd. for P.R. v. Centro de Periodismo Investigativo, Inc., 143 S. Ct. 1176, 1183 (2023). Justice Gorsuch has recently called for both a heavy limiting of the plenary power doctrine in the context of Indian law and an overruling of the plenary power doctrine entirely with respect to the territories. See Haaland v. Brackeen, 143 S. Ct. 1609, 1657–60 (2023) (Gorsuch, J., concurring) (“‘Congress’s authority to legislate with respect to Indians is not unbounded,’ but instead comes with concrete limitations. To resolve the present dispute, the Court understandably sees no need to demarcate those limitations further. But I hope that, in time, it will follow the implications of today’s decision where they lead and return us to the original bargain struck in the Constitution — and, with it, the respect for Indian sovereignty it entails.” Id. at 1660 (citation omitted) (quoting id. at 1629 (majority opinion))); United States v. Vaello Madero, 142 S. Ct. 1539, 1552–57 (2022) (Gorsuch, J., concurring) (“Because no party asks us to overrule the Insular Cases to resolve today’s dispute, I join the Court’s opinion. But the time has come to recognize that the Insular Cases rest on a rotten foundation. And I hope the day comes soon when the Court squarely overrules them.” Id. at 1557.). But calls for simple overruling overlook the vital and distinctive constitutional questions raised by the constitution of American colonialism. These are questions that cannot be resolved by simply extending our current, and fundamentally limited, constitutional theory and doctrine over the borderlands — as Brackeen illustrates so poignantly. Nor can these questions, as Justice Gorsuch has so eloquently argued, be resolved by simply returning us to the Founding. See id. at 1554.

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  94. ^ Much of the modern law passed according to this doctrine already aims to mitigate the American colonial project through innovative structures of federalism, forms of representation, collaborative lawmaking, redistribution of power, citizenship, and consent. Blackhawk, Legislative Constitutionalism and Federal Indian Law, supra note 39, at 2240–42.

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  95. ^ See generally Matthew L.M. Fletcher, The Origins of the Indian Child Welfare Act: A Survey of the Legislative History (Indigenous L. & Pol’y Ctr., Occasional Paper 2009-04, 2009), https://www.law.msu.edu/indigenous/papers/2009-04.pdf [https://perma.cc/FYA7-XK2T].

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  96. ^ See Blackhawk, Legislative Constitutionalism and Federal Indian Law, supra note 39, at 2223–24. For an overview of tribal constitutional discourse, see Robert J. Miller, American Indian Constitutions and Their Influence on the United States Constitution, 159 Proc. Am. Phil. Soc’y 32, 43–56 (2015).

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  97. ^ 142 S. Ct. 1539 (2022).

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  98. ^ 142 S. Ct. 2486 (2022).

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November 13, 2023

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