Gregory Abalvsky has posted “History, Power, and Federal Indian Law” on Process, the blog of the Organization of American Historians, The Journal of American History, and The American Historian.
An excerpt:
Indian law is not unique in involving judicial uses of history. But not only is Indian law exceptionally historically focused, it is also different from, for instance, the more familiar fights over originalism. While struggles over constitutional history often concern grand and abstract principles and attract significant attention, Indian law cases are often viewed as minor—Justice Brennan reportedly once referred to them as “chickenshit”—and their outcome likely turns on the very local and specific pasts of a particular reservation, treaty, or centuries-old statute. The indeterminacy of these histories gives judges remarkably wide rein to craft the law as they see fit: “[W]hen it comes to Indian law,” the late Justice Scalia once quipped, “most of the time we’re just making it up.”
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