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.

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).

Greg Ablavsky’s Federal Ground: Reviews and Book Panel

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.

The book talk featuring Alison LaCroix, Joe Singer, and Fletcher. Liz Reese moderated.
Comic book here.

Gregory Ablavsky on the Presentment Clause and Tomorrow’s Argument in Brackeen

Here is “Brackeen, the Indian Child Welfare Act, and the Presentment Clause: A Very Pink Herring” on SLS blogs.

An excerpt:

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.

Gregory Ablavsky on Indian Law and Legal History

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.”

Congrats to Rabia Belt and Greg Ablavsky!!!!

Winners of the Kathryn T. Preyer Scholar Award, a very big deal in legal history circles!

I met Rabia (JD/PhD from Michigan — Go Blue twice) when she audited my Federal Indian Law class in the winter of 2011. I strongly recommend all her work, but my favorite is the paper on madness. 🙂

I met Greg through his American Indian legal history work (here, here and here), some of which he workshopped a few summers back at Angela Riley’s wonderful UCLA junior scholars workshop.