Greg Ablavsky on Castro-Huerta

Gregory Ablavsky has posted “Too Much History: Castro Huerta and the Problem of Change in Indian Law,” forthcoming in the Supreme Court Review, on SSRN. Here is the abstract:

The Supreme Court’s decision last Term in Castro-Huerta v. Oklahoma dramatically rewrote the rules of criminal jurisdiction in federal Indian law. For the first time since 1882, the Court judicially expanded the scope of state criminal jurisdiction in Indian country, finding that states hold jurisdiction over Indian-on-non-Indian crime concurrently with the federal government. In reaching this conclusion, the Court exemplified the subjectivism that scholars have criticized in the Court’s Indian law jurisprudence for decades. The opinion distinguished or cast aside at least six prior decisions where the Court had seemingly reached the opposite conclusion, as well as concluding that the Court had already substantially limited the Court’s foundational holding in Worcester v. Georgia (1833) that Indian country ordinarily lies outside state authority.

Building on these earlier critiques, this Article uses Castro-Huerta to examine a less explored flaw in the Court’s Indian law rulings—what I call the problem of “too much history.” In Indian law, judges and litigants must make sense of over two centuries of jurisdictional debates, recorded largely not in statutes or constitutional provisions but in dozens of shifting Supreme Court decisions. The key question in Castro-Huerta, and the core of the dispute between majority and dissent, was change–how the law on state jurisdiction in Indian country had shifted over time. But the sheer mass of history makes it hard for the Justices to identify legitimate legal change in Indian law.

More Jaune Smith

This conundrum leads to two broad types of judicial use of history in Indian law. “Good” history decisions, epitomized by this Term’s decision in Ysleta del Sur Pueblo v. Texas, employ specific context to examine narrowly defined legal questions. By contrast, “bad” history opinions, exemplified by Castro-Huerta, turn to the past as an independent source of law, ask broad, unanswerable questions of it, and provide no clear way to assess the inevitable heap of conflicting evidence.

Having laid out this challenge, the Article reexamines the question of the specific historical change at the core at Castro-Huerta. Rather than the majority’s narrative of abandonment and the dissent’s narrative of continuity, I think a more accurate account of what the Court has done with respect to state jurisdiction in Indian country is translation—trying to make sense of older legal principles within a new jurisprudential frame. But this approach makes the Court’s decisions in this area especially prone to misreading and selective citation, as Castro-Huerta underscored.

Greg Ablavsky and Tanner Allread on How Indigenous Peoples Debated the U.S. Constitution

Gregory Ablavsky and W. Tanner Allread have posted “We the (Native) People?: How Indigenous Peoples Debated the U.S. Constitution,” forthcoming in the Columbia Law Review, on SSRN.

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.

Jack Fiander on the Constitutional Foundation of Federal-Tribal Relations

Jack Fiander has posted “The Melding of International Law and the Customary Law of Tribal Nations; The Constitutional Origin of Federal-Tribal Relations” on SSRN.

Here is the abstract:

To seek understanding of the basis for the relationship of the government of the United States with tribal nations it is necessary to examine not only the intent of the “Founding Fathers” but also that of the tribal nations with whom those framers of the United States Constitution dealt at the time of America’s founding. To do otherwise is ethnocentric, at best, and omits half the equation. Establishing a Constitutional relationship requires the perspective of both sides, not only that of those acting on behalf of the fledgling United States. At the time this nation’s founding, tribal nations were mighty in number and therefor treated by Colonists as sovereign nations to be dealt with in conformity with respect for their respective forms of customary and international law. Recognizing tribal sovereignty required adherence to what might be described as tribal laws of nations to manage their own internal affairs, as is evident in the framers’ deferential dealings with Tribal Nations in the founding era and thereafter. Because Colonists understood the need to gain alliances with the powerful tribal nations to secure protection against foreign powers, the Framers appropriated concepts from Tribal nations, which paralleled those in the international Law of Nations, to which much Constitutional authority for the relationship of the United States with tribal nations is traceable.

Dyani White Hawk, Detroit Institute of Arts

Greg Ablavsky Responds to Rob Natelson’s “Cite Check” of Ablavsky’s “Beyond the Indian Commerce Clause”

Gregory Ablavsky’s “Beyond the Indian Commerce Clause: Robert Natelson’s Problematic ‘Cite-Check’” is at the Stanford Law School blog, Legal Aggregate.

An excerpt:

Here’s that context: In 2007, Mr. Natelson wrote a law review article on the original understanding of the Indian Commerce Clause. Justice Thomas later cited Mr. Natelson’s article in a 2013 concurrence questioning Congress’s authority to enact the Indian Child Welfare Act (ICWA). In 2015, while a graduate student finishing my J.D./Ph.D. in American Legal History at Penn, I published Beyond the Indian Commerce Clause in the YLJ, which revisited original understandings of the sources of federal power over Indian affairs. In the article, I argued that the Founders thought that the federal government’s authority rested not just on the Indian Commerce Clause but on the interplay between multipleconstitutional provisions, including the Treaty Clause, the Territory Clause, the war powers, the law of nations, and the Constitution’s limits on state authority. The article also challenged Justice Thomas’s and Mr. Natelson’s conclusions in what Mr. Natelson later conceded was a “generally respectful” tone. Since the article, a number of subsequent articles by other scholars, some right-of-center and others disagreeing with my conclusions, have similarly challenged Mr. Natelson’s views.

Recommended reading. Professor Ablavsky is the leading legal historian of federal Indian law right now and filed a compelling amicus brief in Brackeen (here).

The End of a Michigan Law Allowing Scientists to Dig Up “Aboriginal Inhabitants”

Came across this short note in Indian Talk, a 1973 newsletter by and about Michigan Indians and a precursor to the original Turtle Talk, referencing a federal lawsuit filed to have Michigan public law 750.160 declared unconstitutional. That law prohibited Dr. Frankenstein and others from digging up graves, but granted an exception to Indiana Jones in case he found some Indian bones:

Shay Elbaum at the Michigan law library found a 1974 law repealing the part about “aboriginal inhabitants.”

Can’t find a record of the lawsuit, however. It probably went away when the state legislature repealed the exception.

John LaVelle on the History of Indian Country and Reservation Boundaries Cases, Part 1

John P. LaVelle has published the provocatively titled “Of Reservation Boundary Lines and Judicial Battle Lines, Part 1 – Reservation Diminishment/Disestablishment Cases from 1962 to 1975: The Indian Law Justice Files, Episode 1” in the UCLA Indigenous Peoples Journal of Law, Culture, and Resistance.


This Article is the first of a two-part investigation into the Indian law doctrine of reservation diminishment/disestablishment, examining Supreme Court decisions in this area in light of insights gathered from the collected papers of individual Justices archived at the Library of Congress and various university libraries. The Article first addresses Seymour v. Superintendent (1962) and Mattz v. Arnett (1973), observing that these first two diminishment/disestablishment cases are modern applications of basic, longstanding principles of Indian law which are highly protective of Indigenous people’s rights and tribal sovereignty. The Article then examines in detail DeCoteau v. District County Court, the anomalous 1975 decision in which the Supreme Court held that an 1889 land-sale agreement between the United States and the Sisseton-Wahpeton Dakota Indians, which Congress ratified in 1891, had abolished the boundaries of the Lake Traverse Reservation in South Dakota and North Dakota, a reservation that had been established as the Indians’ “permanent reservation” home in an 1867 treaty. The Article critiques DeCoteau in view of the historical context of the 1862 U.S.-Dakota War, an explosive conflict that resulted in the forced removal of the Dakota people from their reservation and aboriginal homelands in Minnesota and the abrogation of all U.S.-Dakota treaties, including treaty rights that guaranteed annual payments essential for the Indians’ subsistence and survival. The Article brings into view the full scope of the negotiations between the Sisseton- Wahpeton people and U.S. commissioners in 1889, demonstrating that the Dakota people never consented to any reduction or elimination of reservation boundaries when they agreed, under desperate circumstances, to sell to the United States the unallotted lands within the reservation. The Article further surveys additional evidence, unaddressed by the Supreme Court, regarding the 1891 Act’s legislative history, including numerous congressional debates and provisions of reports of the Senate and House of Representatives, as well as evidence from Executive Branch sources, which collectively show that the 1891 Act did not shrink or terminate the reservation. The Article posits that DeCoteau, which scholars recognize as having initiated a “magic language” mode of analysis in the reservation diminishment/disestablishment area, cannot be reconciled with fundamental principles of Indian law. Finally, the Article inspects and discusses documents from the archived papers of the Justices who took part in DeCoteau, unraveling clues that may help account for the Supreme Court’s aberrant decision.

Alan Parker Walks On

Obit here. PLSI Class of 1969.

Alan Parker was a big deal — his footprint on Indian affairs is massive. Before I get into his interesting career, I’m going to paste here the nice profile UCLA did of him last year:

A citizen of the Chippewa Cree Tribal Nation, Alan R. Parker attended St Thomas Seminary where he earned a B.A. in Classical Philosophy in 1965. He subsequently attended UCLA School of Law, in Los Angeles, California, where he received a Juris Doctor degree in 1972. Prior to attending Law School, he served as 1st Lt. in the Signal Corp in the US Army from 1965 1968. He was awarded a Bronze Star medal for Out-standing Leadership Service under combat conditions in Vietnam.

Continue reading

Sherally Munshi on Dispossession and American Property

Sherally Munshi has published “Dispossession: An American Property Law Tradition” in the Georgetown Law Journal.

The abstract:

Universities and law schools have begun to purge the symbols of conquest and slavery from their crests and campuses, but they have yet to come to terms with their role in reproducing the material and ideological conditions of settler colonialism and racial capitalism. This Article considers the role the property law tradition has played in shaping and legitimizing regimes of racialized dispossession past and present. It intervenes in the traditional presentation of property law by arguing that dis-possession describes an ongoing but disavowed function of property law. As a counter-narrative and critique of property, dispossession is a useful concept for challenging existing property arrangements, often rationalized within liberal and legal discourse.

Interesting. Looks to be expanding on K-Sue Park’s work.

Bobby Wilson