Fletcher & Singel on the Historical Basis for the Trust Relationship between the US and Indian Children

Fletcher & Singel have posted “Indian Children and the Federal Tribal Trust Relationship” on SSRN.

Here is the abstract:

This article develops the history of the role of Indian children in the formation of the federal-tribal trust relationship and comes as constitutional challenges to the Indian Child Welfare Act (ICWA) are now pending. We conclude the historical record demonstrates the core of the federal-tribal trust relationship is the welfare of Indian children and their relationship to Indian nations. The challenges to ICWA are based on legally and historically false assumptions about federal and state powers in relation to Indian children and the federal government’s trust relationship with Indian children.

Indian children have been a focus of federal Indian affairs at least since the Framing of the Constitution. The Founding Generation initially used Indian children as military and diplomatic pawns, and later undertook a duty of protection to Indian nations and, especially, Indian children. Dozens of Indian treaties memorialize and implement the federal government’s duty to Indian children. Sadly, the United States then catastrophically distorted that duty of protection by deviating from its constitution-based obligations well into the 20th century. It was during this Coercive Period that federal Indian law and policy largely became unmoored from the constitution.

The modern duty of protection, now characterized as a federal general trust relationship, is manifested in federal statutes such as ICWA and various self-determination acts that return self-governance to tribes and acknowledge the United States’ duty of protection to Indian children. The federal duty of protection of internal tribal sovereignty, which has been strongly linked to the welfare of Indian children since the Founding, is now as closely realized as it ever has been throughout American history. In the Self-Determination Era, modern federal laws, including ICWA, constitute a return of federal Indian law and policy to constitutional fidelity.

David Simon’s Critique of Originalism in Light of “12 Years a Slave”

Powerful. In short, originalism and slavery is inextricably intertwined.


An excerpt:

Anyone who acquires the narrative of 12 Years A Slave and finds it within his shrunken heart to continue any argument for the sanctity and perfection of our Founding Fathers, for the moral wisdom of their compromised document of national ideal that begins the American experience, or for their anachronistic or historically understandable tolerance of slavery — they are arguing from a desolate, amoral corner.

If original intent included the sadism and degradation of human slavery, then original intent is a legal and moral standard that can be consigned to the ash heap of human history.   Hardcore conservatives and libertarians who continue to parse the origins of the Constitutions under the guise of returning to a more perfect American union are on a fool’s journey to decay and dishonor.

Kate Fort: “The Vanishing Indian Returns: Tribes, Popular Originalism, and the Supreme Court”

Our own Kathryn E. Fort has posted her paper, “The Vanishing Indian Returns: Tribes, Popular Originalism, and the Supreme Court,” on SSRN. It was published in the St. Louis Law Journal.

Here is the abstract:

As the nation faces cultural divides over the meaning of the “Founding,” the Constitution, and who owns these meanings, the Court’s embrace of originalism is one strand that feeds the divide. The Court’s valuing of the original interpretation of the Constitution has reinforced the Founder fetishism also found in popular culture, specifically within the politics of those identified as the Tea Party. As addressed elsewhere, their strict worship of the Founders has historical implications for both women and African Americans, groups both marginalized and viewed as property in the Constitution. No one, however, has written about how the Court’s cobbled historical narrative and their veneration for the Founders have affected American Indian tribes. Tribes  barely exist in the Constitution, and the Founders’ “original” understanding of tribes was that they would inevitably disappear.

The “vanishing Indian” stereotype, promulgated in the early Republic, and reaching an apex in the 1820’s, continues to influence fundamentally how the Court views tribes. Compressing history from the Founding through the  Jacksonian era undermines tribal authority and sovereignty within the Court. In its federal Indian law cases, the Court relies on racial stereotypes and popular conceptions of American history. As a result of these shortcuts, the Court folds all tribes into one large group, empties the American landscape of tribal  peoples, and forces tribes into a past where they only exist to disappear.

Natelson (Montana) on the Indian Commerce Clause

Rob Natelson (Montana) has posted “The Original Understanding of the Indian Commerce Clause” on SSRN. Here is the abstract:

The United States Congress claims plenary and exclusive power over federal affairs with the Indian tribes, based primarily on the Constitution’s Indian Commerce Clause. This article is the first comprehensive analysis of the original meaning of, and understanding behind, that constitutional provision. The author concludes that, as originally understood, congressional power over the tribes was to be neither plenary nor exclusive.

This paper has been published in the Denver University Law Review.

I’m about halfway through this paper right now. As the abstract indicates, Rob’s conclusion goes against nearly 200 years of settled Indian law, plus flatly contradicts the work of people like Bob Clinton and many others (including, I guess, myself). More later….