Notes on the Thin Indian Law Record of Judge Barrett

Supreme Court nominee Amy Coney Barrett, a judge on the Seventh Circuit, has a bit of a thin record on Indian law matters, but no less than many other nominees. I address three areas, her judicial record, her clerkship for Justice Scalia, and her scholarly record.

I. Judicial Record

Judge Barrett was a member of a panel affirming by unpublished opinion an appeal brought by a Native prisoner in Wisconsin state prison, Schlemm v Carr. Unpublished opinions are unsigned and usually written by a court clerk. From the order, we learn what the religious issue involved:

David Schlemm, a Native American inmate, sued the Wisconsin Department of Corrections and prison officials for interfering with his religious practices. The district court entered summary judgment for the defendants, but we remanded his case for trial. See Schlemm v. Wall, 784 F.3d 362 (7th Cir. 2015). After a bench trial, the district court entered an injunction requiring the Department to honor several of Schlemm’s requests. On appeal again, Schlemm primarily asserts that the injunction is insufficient; specifically, it does not permit him to obtain fresh game meat to make “Indian Tacos” for the traditional Ghost Feast. Because the record shows that this limitation does not impose a substantial burden on Schlemm’s religious exercise and is the least restrictive means of furthering the prison’s security interest, we affirm the judgment.

Judge Barrett’s only writing as a judge mentioning Indians is from her dissent in a Second Amendment case, Kanter v. Barr, 919_F.3d_437. In her dissent, Judge Barrett argued that the federal prohibition on felons possessing guns was unconstitutional as applied to non-dangerous felons. Her dissent drew deeply from originalist theory and sources similar to Justice Scalia’s majority opinion in D.C. v. Heller. One of the arguments raised by Judge Barrett was that the leaders of the founding generation summarily disarmed persons considered dangerous, including Indians and slaves:

Slaves and Native Americans, on the other hand, were thought to pose more immediate threats to public safety and stability and were disarmed as a matter of course. See MALCOLMsupra, at 140–41; WINKLERsupra, at 115–16 (noting “forcible disarmament” out of “fear that these groups would use guns to revolt” or otherwise threaten the “public safety”); DECONDEsupra, at 21–22 (noting “anxiety that slaves would rebel”). And this practice of keeping guns out of the hands of “distrusted” groups continued after the Revolution. For example, many states even constitutionalized the disarmament of slaves and Native AmericansSee Volokh, 11 TEX. REV. L. & POL. at 208–09.7

It is tempting to read too much into this passage. No doubt Judge Barrett is not using this historical evidence to support the summary disarming of Indians and descendants of slaves in the 21st century. But the dependence on founding-era evidence to interpret the Constitution could be troubling — after all, if the founders’ interpretation of the Constitution is controlling on the Supreme Court, then summary disarmament of Indians and descendants of slaves authorized by Congress or a state legislature that declares people of color as “dangerous” could be held to be constitutional. I’ve written about the pitfalls of over-reliance on originalist thought and evidence in a new paper just published in the Michigan Journal of Race & Law here.

Judge Barrett also participated in an appeal regarding the dueling claims of romance novelists who wrote books about a wealthy white woman who falls in love with an Indian man, Rucker v Fasano. Here is a description of that case:

No love is lost between romance novelists Kelly Rucker and Donna Fasano, who each wrote a tale of a wealthy teenage girl who falls in love with a boy of Native American heritage and becomes pregnant, before they are cruelly parted. To the reader’s relief, however, in each book the lovers are reunited years later, and they rekindle their fiery romance while their child explores his indigenous heritage with his father’s guidance. The characters’ happy endings, however, did not extend to the authors, who each claim to have conceived the story first. Rucker sued Fasano and her publishers for copyright infringement. In this appeal challenging the district court’s entry of summary judgment for the defendants, Rucker contends that disputes of material fact exist regarding Fasano’s access to Rucker’s story and the similarities between the two works. We affirm the judgment.


The Promise of a Virgin is about a heroine named Sheridan who has a teenage romance with Kasey, her family’s pool boy, who is part of the Navajo Nation. Reclaim My Heart is about a heroine named Tyne who has a teenage romance with Lucas, a boy who is part of the Nanticoke Lenni-Lenape Tribal Nation. The protagonists in each story have a secret tryst and the heroine becomes pregnant. The teenage lovers then part under tragic circumstances only to reunite years later as adults—ten years in Rucker’s book and sixteen years in Fasano’s. In both books the hero finally meets his son, and teaches him about his indigenous heritage. The novels both end with the hero and heroine falling in love again and getting married.

There is no Indian law in this case.

II. Clerkship

Judge Barrett clerked for Justice Scalia in the 1998 Term. The Supreme Court decided four Indian law cases that year. In each case, Justice Scalia voted against tribal interests.

Arizona Dept. of Revenue v. Blaze Constr. (1999)

El Paso Natural Gas Co. v. Neztsosie (1999)

Minnesota v. Mille Lacs (1999)

Amoco Production v. Southern Ute (1999)

It is treacherous to assign views on Indian law to Judge Barrett simply because she clerked for Justice Scalia, but it is very possible that she worked extensively on at least one of these cases. Justice Scalia did not write a separate opinion in any of these cases.

III. Scholarly Record

Judge Barrett came to the Seventh Circuit as a law prof at Notre Dame. In her article surveying the canons of construction, Judge Barrett described the history of the canon of construction of Indian treaties and the rise of the canon of construction of Indian affairs statutes:

Philip Frickey describes the Indian canon – the maxim that statutes dealing with the Indians must be construed in their favor – as the legacy of John Marshall.193 It is, therefore, like avoidance and Charming Betsy, another uniquely American invention. In Patterson v. Jenks, Chief Justice Marshall, interpreting a treaty between the state of Georgia and the Creek Indians, noted that in a contest between those two parties, ambiguity should be resolved in a manner “favourable to the pretension of the less powerful and less intelligent or skilful [sic] party to the compact.”194 That was the first mention of the canon, but the case that really launched it was Worcester v. Georgia, which interpreted a treaty between the Cherokee Indians and the United States.195 Marshall’s opinion favors the Indians in construing the treaty,196 but it is the starker language from Justice M’Lean’s concurrence that has been quoted by later cases: “The language used in treaties with the Indians should never be construed to their prejudice. . . . How the words of the treaty were understood by this unlettered people, rather than their critical meaning, should form the rule of construction.”197
After Worcester, the Indian canon lay dormant in federal case reports until the Supreme Court invoked it again thirty-four years later in In re Kansas Indians, where the Court applied the canon to a treaty exempting certain Miami Indian lands from taxation.198 I found only two other nineteenth century cases invoking the canon.199 Given the paucity of nineteenth century cases applying the canon, twentieth century courts perhaps overstated the case when they described the canon as “well-settled law”200 and a “rule of construction [that] has been recognized, without exception, for more than a hundred years.”201
The Indian canon is unique among the substantive canons discussed in this Part because it began in the treaty context as essentially a rule of contract interpretation. Insofar as it instructs courts to construe treaties in favor of the less sophisticated party to them, the rule resembles the approach that courts take in the construction of adhesion contracts.202 What is interesting about the Indian canon for present purposes is that it jumped without discussion from the interpretation of treaties to the interpretation of statutes. Treaty making with the Indians ceased in 1871 in response to demands from the House of Representatives for a role in the making of federal Indian policy.203 Thereafter, relations between the United States and Indian tribes were governed by statute. When courts began interpreting these statutes in the early 1900s, they assumed, without reflection, that the canon should continue to apply. For example, without considering the potential impact of the structural differences between statutes and treaties, the Circuit Court of Nevada asserted that the canon should apply to statutes dealing with Indians simply because statutes had replaced treaties as the mechanism by which Indian policy was made.204 The Supreme Court’s first application of the canon to a statute did not even acknowledge the shift from treaty to statute.205
That is not to say that federal courts have been wrong to apply the Indian canon to statutes.206 The point for present purposes is not the validity of the canon, but the utility of the historical evidence for revealing the attitudes of early federal courts toward substantive canon-making. And the peculiar circumstances surrounding the emergence of this canon – particularly its grounding in treaty interpretation, where a court enforces an agreement reached by multiple parties rather than functioning solely as Congress’s faithful agent – make its history of limited utility notwithstanding its presence on the list of old canons that modern courts continue to apply.

If anything is to be drawn from this passage, and that’s a big “if”, Judge Barrett’s awareness of the canons is a good thing. Judge Barrett’s skepticism of the history of the canon of construction as applied to federal statutes is concerning. In a later passage, she seemed to worry that federal courts would rewrite federal statutes to benefit Indians and tribes in a way that might trouble textualists:

More troubling for the textualist are the cases in which federal courts invoked substantive canons to justify a departure from a statute’s most natural reading. Courts identified an outer limit to the judicial power by disavowing the ability to adopt an interpretation that contravened the plain text. But they claimed substantial leeway to work within meanings that the statute could bear. Recall that in Charming Betsy, Marshall argued that “an act of Congress ought never to be construed to violate the law of nations if any other possible construction remains.”223 In describing the avoidance canon, Justice Story opined that to avoid an unconstitutional interpretation of a statute, a court should adopt a construction “which although not favored by the exact letter, may yet well stand with the general scope of the statute, and give it a constitutional character.”224 Courts applying the presumption against retroactivity explained that they would “struggle hard” against a retroactive interpretation,225 refusing to adopt it “unless it contained express words to that purpose.”226 Courts applying the government-exemption rule read an exception into otherwise unqualified text absent a clear statement to the contrary.227 Courts also read treaties with the Indians in favor of the Indians, rather than as Congress may have understood or intended, but the contractual origins of the Indian canon make it a less enlightening gauge of how federal courts understood the scope of their power to interpret statutes.228

Footnote 228 cites to the previous passage generally — Judge Barrett found no cases to support the proposition that troubled her. It is somewhat concerning that she appears to assume that the courts are too deferential without doing the research to support that proposition. However, in footnote 206, Barrett does note Phil Frickey’s argument that the Indian canons are rooted in the Constitutional relationship between tribes and the federal government:

Frickey has made powerful arguments as to why the “difference in form should not … substantially alter judicial methodology,” Frickey, supra note 193, at 421-22, including the argument that the canon can be understood as an outgrowth of the “sovereign-to-sovereign, structural relationship” between Indian nations and the United States. Id. So understood, the canon might be rationalized with reference to the Constitution rather than to a contract analogy. See infra Part IV.C.

Indian law advocates would love to see a Judge Barrett incorporate these views into a judicial opinion.

Judge Barrett here briefly wrote about the aftermath of the Worcester v. Georgia decision, where President Andrew Jackson engaged in a political war with the Supreme Court and the Governor of Georgia:

Jackson’s confrontation with the Court stemmed from the Court’s holding unconstitutional a Georgia statute that, among other things, permitted whites to live among Indians only if they got a license to do so and swore an oath of loyalty to the State of Georgia.41 Samuel Worcester was convicted for his refusal to do either; the Supreme Court, holding the statute unconstitutional, overturned his conviction and ordered Georgia to release the prisoner.42 Georgia refused.43 With a federal judgment at stake, one might have expected Jackson to force Georgia’s compliance, but he did not. Instead, tradition has it that Jackson proclaimed, “John Marshall has made his decision, now let him enforce it.”44 Jackson’s failure to intervene, combined with rhetoric decrying the Supreme Court and defending Georgia, left Jackson vulnerable to the charge that he had violated the Constitution by failing to enforce the Court’s decree.45 Jackson was saved from a direct collision with the Court by the fact that he appeared to lack the authority to act. Timing and a procedural quirk had prevented the Supreme Court from dispatching the federal marshal to execute the judgment, and a federal statute authorized the President to intervene only if the marshal failed.46 Thus, notwithstanding Jackson’s fairly open approval of Georgia’s defiance and his expressed willingness to defy the Court himself, he came only to the brink of refusing to enforce a federal judgment. His conduct nonetheless stands as an important, if symbolic, denial of an unqualified executive obligation to execute Supreme Court judgments.

Judge Barrett noted in a footnote a piece of historical gossip that I found fascinating, that perhaps the first instance a protest formed at the Supreme Court building in response to the 1968 Puyallup decision:

An early, and perhaps even the earliest, protest at the Court in response to a Supreme Court opinion occurred on May 29, 1968, when angry demonstrators from the Poor People’s Campaign, representing the interests of Indians, stormed the Supreme Court in response to a ruling upholding the State of Washington’s right to specify when fishing could take place in the state. See Earl Caldwell, High Court Building Stormed in Demonstration by the Poor, N.Y. Times, May 30, 1968, at 1. The first “March for Life,” the still-continuing annual protest against Roe v. Wade, was held on January 22, 1974, the first anniversary of the decision. See Louis J. Palmer, Jr., March for Life, in Encyclopedia of Abortion in the United States 208, 208 (2002).