BLACKHAWK

CENTERING INDIAN LAW IN THE CONSTITUTIONAL CANON

on research by MAGGIE BLACKHAWK Assistant Professor of Law

In a groundbreaking article recently published in the Harvard Law Review, University of Pennsylvania Law School Professor Maggie Blackhawk (Fond du Lac Band of Lake Superior Ojibwe), argues for a paradigm shift in American constitutional law that would place Native Americans, federal Indian law, and American colonialism at the center of how lawyers and the public understand our constitutional framework. The article, “Federal Indian Law as Paradigm within Public Law,” marks the first time in nearly 15 years that the Harvard Law Review has published an article on federal Indian law.

Blackhawk, an Assistant Professor of Law, researches and teaches in the fields of constitutional law, federal Indian law, and legislation. Her recent projects examine the ways that American democracy can and should empower minorities, especially outside of traditional rights and courts-based frameworks.

“At the heart of constitutional law is the question of how best to constitute, distribute, and limit government power,” writes Blackhawk. “Although there is much to learn from this Nation’s tragic history with slavery and Jim Crow segregation, resting our public law on a single paradigm case that is defined by the black/white racial binary has led to incomplete models and theories. This Nation’s tragic history with colonialism and the violent dispossession of Native lands, resources, culture, and even children offers different, yet equally important, lessons about how to distribute and limit government power.”

Unlike the law of slavery and segregation, Blackhawk argues, American colonialism has not been overruled, meaning the federal government can use as justification the same doctrines it used to detain and dispossess Native people. For example, the last three presidential administrations have used the Indian Wars as precedent to justify action in the War on Terror. More recently, this doctrine, which underlay the government’s actions in forcing Natives onto reservations and taking Native children from their parents to place

MAGGIE BLACKHAWK

“We cannot truly understand how to achieve good governance unless we look at all of our collective failures — including colonialism — alongside slavery.”

them in boarding schools run by the federal government, has been used to uphold President Trump’s Muslim travel ban. The same “plenary power” doctrine underlies much of American immigration law — including family separations and immigration detention centers. While prevailing understanding of U.S. constitutional law has been centered around slavery and Jim Crow segregation, Blackhawk advocates for a more inclusive paradigm that recognizes the lessons that can be drawn from the United States’ history with Native people and the violent dispossession of lands, resources, cultures, and children that comprise much of that story.

“We cannot truly understand how to achieve good governance unless we look at all of our collective failures – including colonialism – alongside slavery,” said Blackhawk. “My hope is this article will not just shed light on 200 years of American history, but will also open the conversation for the first time that the U.S. government is still legally able to treat people the same way the federal government treated Native people. This is a recurring problem that must be addressed.”

Blackhawk’s article goes on to highlight the ways incorporating federal Indian law into the canon and anti-canon of constitutional law would yield different and more nuanced understandings of the best way to protect minorities. In particular, she writes, while existing constitutional theory “presumes that minorities are best protected with national [federal] oversight” and is suspicious of “states’ rights” or local control, an examination of Indian law shows how the national government and national rights have actually been used to hurt Native people and further American colonialism, while localism and the empowerment of Native nations through the recognition of inherent tribal sovereignty has had more positive effects.

Blackhawk also argues that the paradigm case of federal Indian law challenges the prevailing assumption that the judiciary is the branch of government best suited to protect minorities. While this may have been true in cases involving Jim Crow, she writes, “throughout the twentieth century, it has often been Congress and the Executive… rather than the courts, that have provided sanctuary” for Native people in the United States. With the federal judiciary currently being transformed — moved sharply to the right by Republican-supported nominees — Blackhawk’s paradigm shift offers alternative pathways for preventing government abuse of minorities.

“Across a range of substantive areas, the constitutional law, development, and history of the United States has been shaped by its interaction with Native Nations and Native peoples,” writes Blackhawk. “This is not an easy history to face, but there are lessons in its failures and there is more to celebrate than we now recognize…. Moving beyond the binary paradigm and centering federal Indian law within public law could not only add greater context and accuracy to a wide range of substantive areas, it could fundamentally reshape many of the general presuppositions and principles upon which public law rests.”