Ablavsky and Allread on We the (Native) People: How Indigenous Peoples Debated the U.S. Constitution @StanfordLaw @tannerallread

Gregory Ablavsky, Stanford Law School, and W. Tanner Allread, Stanford University, Department of History, have published We the (Native) People?: How Indigenous Peoples Debated the U.S. Constitution at 123 Columbia Law Review 243 (2023). Here is the abstract.

The Constitution was written in the name of the “People of the United States.” And yet, many of the nation’s actual people were excluded from the document’s drafting and ratification based on race, gender, and class. But these groups were far from silent. A more inclusive constitutional history might capture marginalized communities’ roles as actors, not just subjects, in constitutional debates. This Article uses the tools of legal and Native history to examine how one such group, Indigenous peoples, argued about and with the U.S. Constitution. It analogizes Native engagement to some of the foundational frames of the “Founding” to underscore its significance for current constitutional discourse. Like their Anglo-American neighbors, Native peoples, too, had a prerevolutionary constitutional order—what we here dub the “diplomatic constitution”—that experienced a crisis during and after the Revolution. After the Constitution’s drafting, Native peoples engaged in their own version of the ratification debates. And then, in the early republic, Native peoples both invoked and critiqued the document as they faced Removal. This Article’s most important contribution is proof of concept, illustrating what a more inclusive constitutional history might look like. Still, some of the payoffs are doctrinal: broadening the “public” in original public meaning, for instance. But the more significant stakes are theoretical. As this Article contends, by recognizing Indigenous law and constitutional interpretations as part of “our law”—in other words, the pre- and post-constitutional legal heritage of the United States—Native peoples can claim their role as co-creators of constitutional law.

Download the article from SSRN at the link.

Fletcher on Anishinaabe Law and The Round House @MSULaw

Matthew L. M. Fletcher, Michigan State University College of Law, has published Anishinaabe Law and The Round House at 10 Albany Government Law Review 88 (2017). Here is the abstract.

This paper addresses the Indian country criminal justice system’s difficulties through the context of the Great Lakes Anishinaabeg’s traditional customs, traditions, and laws, and their modern treatment of crime. Louise Erdrich’s The Round House expertly captures the reality of crime and fear of crime in Anishinaabe Indian country, and offers a bleak view of the future of criminal justice absent serious reform in the near future.

Download the article from SSRN at the link or here from the journal's website.

Hill on Cheap Sentiment and "Dances With Wolves"

Claire A. Hill, University of Minnesota Law School, is publishing Cheap Sentiment in volume 81 of Law and Contemporary Problems (2018). Here is the abstract.

The Oscar-winning 1990 movie Dances With Wolves tells the story of Lieutenant John Dunbar, a Union officer who adopts a Sioux identity and name. The New York Times explained the movie’s appeal: “[A]n appealing hybrid, a western without guilt,” it enabled viewers to “enjoy a rousing old adventure and still feel they can save the planet.” A (white) person watching the movie could feel a virtuous identification with the Indians, and imagine that had he existed at the time, he too would have fought the good fight, and espoused pro-Indian laws and policies without having to do anything perilous, or really, anything at all. This article, in a symposium issue on Altruism, Community and Markets, labels this phenomenon “cheap sentiment.” Cheap sentiment is like cognitive dissonance and various forms of hypocrisy, but focuses on societal, external effects. A person gets the benefit of holding a particular ‘virtuous’ belief without incurring the cost; if the person acts, or presses for action to be taken, in furtherance of the belief, the cost may even be externalized—society bears the cost. Consider a person who objects to payment for organs as ‘commercializing what should be given freely’ when neither she nor anyone close to her is in need of organs. The same person, if she or a loved one needed organs, might (or might not) have a different view. Consider also people who object to low wages and unsafe working conditions in emerging economies, but who nevertheless buy the resultant products-- products whose (low) prices reflect how little was spent on labor and safer working conditions. Other examples discussed include differential pricing and NIMBY. The article argues that cheap sentiment adversely affects policy-making, especially insofar as it short-circuits (and sometimes even demonizes) due consideration of market-oriented solutions. My hope is that by characterizing the phenomenon of cheap sentiment as a pathology, and accommodation to it as problematic and not inevitable, my framing can serve as a needed counterweight, enabling such solutions to be given due consideration.

Download the article from SSRN at the link.

Kiel on Racial Registration in Native American Communities @Doug_Kiel

Doug Kiel, Northwestern University, is publishing Bleeding Out: Histories and Legacies of 'Indian Blood', in The Great Vanishing Act: Blood Quantum and the Future and Native Nations (K. Ratteree and N. Hill, 2017). Here is the abstract.

This essay examines the origins of the blood quantum system of racial registration in Native American communities, evaluates arguments for and against its continuation, and identifies potential alternatives for reconciling sovereign Indigenous nationhood with racialized conceptions of indigeneity.

Download the essay from SSRN at the link.

Miller on Native American Constitutions and Their Influence on the United States Constitution

Robert J. Miller, Arizona State University College of Law, has published American Indian Constitutions and Their Influence on the United States Constitution in volume 159 of the Proceedings of the American Philosophical Society (March 2015). Here is the abstract.

This paper analyzes modern-day American Indian constitutionalism. It describes the development of written constitutions by Indian nations and primarily focuses on constitutions developed since 1934 under the auspices of the federal Indian Reorganization Act. This paper also briefly examines the evidence that American Indian political philosophies, and traditional tribal governmental structures and ideas, influenced many of the Founding Fathers and the drafting of the United States Constitution.

Download the article from SSRN at the link.

David Carlson's New Book on American Indian Law and Literature, Published by the University of Oklahoma Press

David J. Carlson, Professor of English, California State University, San Bernadino, has published Imagining Sovereignty: Self-Determination in American Indian Law and Literature (University of Oklahoma Press, 2016)(American Indian Literature and Critical Studies Series; 66). Here is a description of the contents from the publisher's website.

“Sovereignty” is perhaps the most ubiquitous term in American Indian writing today—but its meaning and function are anything but universally understood. This is as it should be, David J. Carlson suggests, for a concept frequently at the center of various—and often competing—claims to authority. In Imagining Sovereignty, Carlson explores sovereignty as a discursive middle ground between tribal communities and the United States as a settler-colonial power. His work reveals the complementary ways in which legal and literary texts have generated politically significant representations of the world, which in turn have produced particular effects on readers and advanced the cause of tribal self-determination. Drawing on western legal historical sources and American Indian texts, Carlson traces a dual genealogy of sovereignty. Imagining Sovereignty identifies the concept as a marker, one that allows both the colonizing power of the United States and the resisting powers of various American Indian nations to organize themselves and their various claims to authority. In the process, sovereignty also functions as a point of exchange where these claims compete with and complicate one another. To this end, Carlson analyzes how several contemporary American Indian writers and critics have sought to fuse literary practices and legal structures into fully formed discourses of self-determination. After charting the development of the concept of sovereignty in natural law and its permutations in federal Indian policy, Carlson maps out the nature and function of sovereignty discourses in the work of contemporary Native scholars such as Russel Barsh, Gerald Taiaiake Alfred, D’Arcy McNickle, and Vine Deloria, and in the work of more expressly literary American Indian writers such as Craig Womack, Elizabeth Cook-Lynn, Gerald Vizenor, and Francisco Patencio.

 

The Supreme Court and the Native American

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.
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.

Download the article from SSRN at the link.