Our friend Gregory Ablavsky has published “Federal Ground: Governing Property and Violence in the First U.S. Territories” with Oxford. Columbia Law Review and Michigan Law Review (forthcoming) book reviews are available.
Here is “Brackeen, the Indian Child Welfare Act, and the Presentment Clause: A Very Pink Herring” on SLS blogs.
If the Presentment Clause bars Congress from honoring the divergent policy judgments of other sovereigns, then federalism is in trouble. After all, as the briefs stress and the Supreme Court has explicitly endorsed, Congress has expressly adopted state law as federal law in the Assimilative Crimes Act and the Federal Tort Claims Act. It has expressly authorized states to create wage and hour standards higher than the federal government in the Federal Labor Standards Act. It has allowed states to establish different water and air quality standards from the federal government upon EPA approval, a power that the Court has repeatedly ruled on without saying boo.
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.”