federalism

Did Indian Nations Influence the American Founders?

Matthew L.M. Fletcher6 Comments

Whether or not the Founders or Framers — the people who helped to form the American government — influenced the structure of the United States government is a fairly raucous debate that recurs again and again. We are reminded of it by the recent posting of Erik Jensen’s 1991 paper repudiating the connection between the Haudenosaunee Great Law of Peace and the American constitutional structure of federalism (here). Shortly thereafter (in 1993), Robert Miller published a paper purporting to show both significant “positive” and “negative” influences from tribal nations (not just the Haudenosaunee) on the Framers (Miller’s paper here). And there are numerous other studies in other fields, some of which get pretty vituperative.

We are struck by the superficial aspects of the origins of both the Haudenosaunee Confederation and the United States — uniting to confront a common enemy, it would seem.

And we are struck by the amount of scholarly (and other) literature that seeks a connection between the Haudenosaunee and Ben Franklin, and the amount of writing generated to harshly debunk those theories.

We want your opinions on this subject. Why is it important to many Indians that the American Constitution have Indian roots or influence? Why is it important to others that the American Constitution be free of Indian roots or influence?

And finally: Do you think the American Constitution would look the same if the Founders had no knowledge of tribal nations?

Commentary on the Carcieri Oral Argument — UPDATED

Matthew L.M. Fletcher4 Comments

I think it’s safe to say after today’s oral argument in Carcieri v. Kempthorne that the chances the Supreme Court will affirm the First Circuit’s decision are pretty small. Of course, what happens at oral argument doesn’t guarantee any outcomes, and any reading of the cold transcript can create misconceptions. But a few comments (I’ve added more material at the end):

First, Ted Olson had the much easier argument to make and he exploited that advantage mercilessly. He had the benefit of the plain language (“now” meaning 1934, when 25 U.S.C. 465 was enacted). He had the benefit of 15 statutes that purported to extend the benefits of Section 465 to newly recognized tribes, a true sound bite if there ever was one. He had the benefit of the legislative colloquy (as it was called in oral argument) between Sen. Wheeler and Indian Affairs Commissioner Collier which seemed to support his view. He had the benefit of a 1978 decision (U.S. v. John) that assumed without deciding that his interpretation was correct. And he had perhaps the most friendly audience to his client, a state government, in the history of the U.S. Supreme Court — the Roberts Court.

The government’s attorney, Deanne Maynard, had a difficult time getting past all of these superficial issues. On the face of it, each argument above is a winner, but there was a reason why the First Circuit sitting en banc unanimously (6-0) rejected each of these arguments below. Unfortunately for the government and the Tribe, the winning arguments for the respondents are based in history, statutory construction and nuance, and other characteristics difficult to parse out when facing a barrage of questions from eight Justices (no questions or commentary from Justice Thomas, as usual). Even when Justice Stevens attempted to explain the statutory construction argument in regards to the definition of “Indian tribe” he got bogged down and never could finish his point.

And, early in her argument, the Chief Justice got Ms. Maynard to concede that the government was asking the Court (“ironically”) to read the statute as if “now under federal jurisdiction” was not actually there.

In short, Mr. Olson appeared to out-argue Ms. Maynard.

Continue reading →