Kathryn Fort, Michigan State University College of Law, has published The Vanishing Indian Returns: Tribes, Popular Originalism, and the Supreme Court at 57 St. Louis University Law Journal (2013). Here is the abstract.
Writing history is perilously tricky, weighing narratives, presenting facts, and making stories. This is particularly true when the history directly affects the legal rights of a present-day community. When the Supreme Court of the United States writes history, it imbibes the narrative with both cultural and legal authority, and the story the Court creates needs to be both persuasive and perceived as factual. The Court is not a body of historians, obligated to write nuanced history. However, the Court’s opinions and factual reiterations legitimize those facts and history. Once the Court releases an opinion, the history in it achieves a high level of popular authority.Download the article from SSRN at the link.
As the nation faces cultural divides over the meaning of the “Founding,” the Constitution, and who owns these meanings, the Court’s embrace of originalism is one strand that feeds the divide. The Court’s valuing of the original interpretation of the Constitution has reinforced the Founder fetishism also found in popular culture, specifically within the politics of those identified as the Tea Party. As addressed elsewhere, their strict worship of the Founders has historical implications for both women and African Americans, groups both marginalized and viewed as property in the Constitution. No one, however, has written about how the Court's cobbled historical narrative and their veneration for the Founders has affected American Indian tribes. Tribes barely exist in the Constitution, and the Founders “original” understanding of tribes was that they would inevitably disappear.
The “vanishing Indian” stereotype, promulgated in the early Republic, reaching an apex in the 1820’s, continues to influence fundamentally how the Court views tribes. Compressing history from the Founding through the Jacksonian era undermines tribal authority and sovereignty within the Court. In its federal Indian law cases, the Court relies on racial stereotypes, and popular conceptions of American history. As a result of these shortcuts, the Court folds all tribes into one large group, empties the American landscape of tribal peoples, and forces tribes into a past where they only exist to disappear.