Native American rights & the plenary power doctrine

May 28, 2019 10:12 AM

The Indian Law That Helps Build Walls: The Supreme Court’s legal abuse of Native Americans set the stage for America’s poor treatment of many of its vulnerable populations. Penn Law assistant professor Maggie Blackhawk (@MaggieBlackhawk): "We are long overdue to confront the abuses of Native Americans and the failure of American colonialism. At the very least, no government should be able to cite the violent detention and oppression of Native Americans as justification for harming other vulnerable populations. The court should overturn the plenary power doctrine; the Indian Wars should serve as precedent for nothing." [Via]

Here's a piece on James Q. Whitman's book Hitler's American Model: the United States and the Making of Nazi Race Law which was mentioned in the main article:

What America Taught the Nazis: In the 1930s, the Germans were fascinated by the global leader in codified racism—the United States.


Maggie Blackhawk, a member of the Ojiwbe tribe, had a new paper published in the Harvard Law Review earlier this month: "The @HarvLRev published, Federal Indian Law as Paradigm within Public Law, today. In it, I argue that we cannot understand American public law or our Constitution without recognizing the centrality of Native people, Native Nations, & American colonialism:"

Federal Indian Law as Paradigm Within Public Law (Full article PDF)

Although there is much to learn from the United States’ tragic history with slavery and Jim Crow segregation, resting our public law on this binary paradigm has led to incomplete models and theories. This Nation’s tragic history of colonialism and violent dispossession of Native lands, resources, culture, and even children offers different, yet equally important, lessons about our constitutional framework.

In this Article, I argue for a more inclusive paradigm that reaches beyond the black/white binary, and I highlight the centrality of federal Indian law and this Nation’s tragic history with colonialism to public law. Currently, to the extent that federal Indian law is discussed at all within public law, it is generally considered sui generis and consigned to a “tiny backwater.” While I concede that the colonial status of Native peoples and the recognition of inherent tribal sovereignty do render aspects of federal Indian law exceptional, federal Indian law and Native history have much to teach about reimagining the constitutional history of the United States. Interactions between the national government and Native Nations have shaped the warp and woof of our constitutional law from the Founding across a range of substantive areas, including vertical and horizontal separation of powers, the Treaty Clause, war powers, executive powers in times of exigency, and many others. I aim to open a conversation as to whether these doctrines ought to take their rightful place in the canon or, perhaps, the anticanon.

Blackhawk was a guest on Matter of Fact with Soledad O'Brien recently and discussed the history of Native American voting rights:

@matteroffacttv: "The 19th amendment was ratified in 1920, giving women the right to vote. Native American women would have to wait 40 years later to get the same right. @MaggieBlackhawk , a law professor at the University of Pennsylvania explains why the wait was so long."

19th Amendment: Then and Now

posted by homunculus (8 comments total)

OMG I do not have the time to dive into this right now but this is powerful.
posted by nikaspark at 11:00 AM on May 28, 2019

I was rather confused when I saw Indian Law, expecting something else altogether.
posted by hugbucket at 11:42 AM on May 28, 2019

Superb post thank you!
posted by spitbull at 2:32 PM on May 28, 2019

Hitler’s explicit crediting of the American West as both inspiration for the idea of Lebensraum, and as an ideal example of race war, was discussed in a book about the Holocaust that I read last year, The Black Earth. It is very disturbing .
posted by thelonius at 2:35 PM on May 28, 2019 [6 favorites]

Also via the via in the OP: Crooked Media launches ‘This Land’ podcast. Cherokee host Rebecca Nagle asks: 'Who owns Oklahoma?’

Previous post: Who Owns Oklahoma?
posted by homunculus at 3:06 PM on May 28, 2019 [4 favorites]

Looking forward to reading this when I've figured a way around my NYT access limit for the month.

Meanwhile anyone interested in a powerful take on how this went down in Canada could look for Suffer the Little Children by Tamara Starblanket, a Cree lawyer and educator. A fascinating read that brings legal history into context with politics and passion, and without the legalese or academic insider jargon.
posted by ecourbanist at 4:16 PM on May 28, 2019 [1 favorite]

Looking forward to reading this when I've figured a way around my NYT access limit for the month.

I just use a different browser, assuming it's not maxed out too.
posted by homunculus at 4:27 PM on May 28, 2019

Paste the article's title into Google.
posted by emf at 6:06 PM on May 28, 2019 [1 favorite]