U.S. Constitutionalism and Native American Sovereignty
U.S. Law and Race Initiative
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10/12/2023
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87
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Ned Blackhawk discusses his recent book The Rediscovery of America: Native Peoples and the Unmaking of U.S. History, which argues for the centrality of Native people and their nations throughout American history from the colonial era to the present, as well as the NYU-Yale American Indian Sovereignty Project, a hub that supports initiatives pertaining to tribal sovereignty and federal Indian law in the United States.
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- [00:00:05.360]Good afternoon, everyone. Thank you for joining us today
- [00:00:08.720]for the first U.S. Law and Race Initiative webinar.
- [00:00:12.820]My name is Anne Gregory and I'm a first year PhD student
- [00:00:15.860]in history at University of Nebraska, studying Great Plains
- [00:00:20.060]Indigenous and legal history.
- [00:00:22.260]Launched in the fall of 2023, the U.S. Law and Race Initiative
- [00:00:26.900]explores new approaches to research, teaching, and public
- [00:00:30.720]engagement with the history of law, race, and
- [00:00:33.920]racialization in the United States.
- [00:00:36.940]Funded by the Andrew W. Mellon Foundation, the initiative brings together
- [00:00:40.800]large university teaching programs,
- [00:00:43.420]immersive new forms of digital media content, and
- [00:00:46.660]community partnership storytelling in order to connect Americans
- [00:00:50.600]to their history in ways that repair the fractures in our national
- [00:00:54.480]understanding of race and racialization.
- [00:00:58.380]Dr. Will Thomas, Dr. Jeanette Eileen Jones, and Dr.
- [00:01:02.880]Katrina Jagodinsky are the faculty leads on the U.S.
- [00:01:05.900]Law and Race Initiative, along with an array of
- [00:01:08.660]expert partners in the College of Arts and Sciences
- [00:01:11.260]and the College of Law at University of Nebraska.
- [00:01:14.800]We are hosting a series of webinars deepening
- [00:01:17.580]the national conversation on the legal history of race.
- [00:01:21.580]Today we're excited to host discussion about U.S. constitutionalism
- [00:01:25.360]and Tribal sovereignty.
- [00:01:27.100]We invite our panelists now to turn their cameras on.
- [00:01:31.020]We are honored today to have with us a great panelist in
- [00:01:35.200]discussion of the U.S. law and race initiative with
- [00:01:39.500]co- director, Dr. Jagodinsky.
- [00:01:43.200]Dr. Ned Blackhawk is a professor of
- [00:01:47.180]History and American Studies at Yale, an editor of the Henry
- [00:01:50.680]Roe Cloud Series with Yale University Press.
- [00:01:53.500]His first book, Violence Over The Land: Indians and Empires
- [00:01:57.400]in the Early American West, a study of the American
- [00:02:00.960]Great Basin that garnered half a dozen professional prizes including
- [00:02:04.780]the Frederick Jackson Turner prize with the
- [00:02:08.740]Organization of American Historians.
- [00:02:10.740]He will discuss his recent book, The Rediscovery of America:
- [00:02:13.940]Native Peoples and the Unmaking of U.S. History, which
- [00:02:17.860]argues for the centrality of Native people and their nations
- [00:02:21.480]throughout American history, from the colonial era to the present.
- [00:02:28.440]Dr. Katrina Jagodinsky is the Susan J. Rosowski
- [00:02:31.460]Associate Professor of History at University of Nebraska.
- [00:02:34.660]She is a legal historian examining marginalized people's
- [00:02:38.380]engagement with 19th century legal regimes and competing
- [00:02:41.900]jurisdictions throughout the North American West.
- [00:02:45.100]Her current project with the Digital Legal Research Lab
- [00:02:48.380]entitled Petitioning for Freedom: Habeas Corpus in the American West
- [00:02:52.720]examines more than 8,000 habeas corpus petitions from Black,
- [00:02:57.920]Indigenous, immigrant, institutionalized, independent petitioners
- [00:03:02.000]over the long 19th century.
- [00:03:05.420]Dr. Jagodinsky and our panelists are going to be in
- [00:03:08.040]conversation for about 35 minutes before we turn to your questions.
- [00:03:12.520]Please feel free to submit your questions at any time
- [00:03:16.000]using the Q&A function on Zoom. I also encourage students from
- [00:03:20.140]History 115 to post their questions to the Q&A function
- [00:03:23.940]or simply upvote the questions you would like to see answered.
- [00:03:28.460]Live captioning will be available to audience members.
- [00:03:32.060]Thank you, Ned Blackhawk, for being here. Now I'll turn things over to
- [00:03:36.040]Dr. Jagodinsky and see you all again at the end of their discussion.
- [00:03:42.490]Thank you, Anne, and thank you to my co-faculty, Dr. Thomas and
- [00:03:48.410]Dr. Jones, who will also be moderating conversations with
- [00:03:53.350]scholars about the themes related to U.S. law and
- [00:03:56.250]race throughout the coming semester.
- [00:03:59.270]Thanks, of course, to Dr. Blackhawk for joining us
- [00:04:02.090]today. I'm really excited about this conversation, and it's
- [00:04:06.270]a treat for me since I've been a fan of your work for so long. So, thank you.
- [00:04:12.110]Audience members likely are joining us with
- [00:04:15.210]some enthusiasm around Dr. Blackhawk's most recent book,
- [00:04:19.890]The Rediscovery of America: Native Peoples and the
- [00:04:23.510]Unmaking of U.S. History from Yale University Press.
- [00:04:27.510]It has been longlisted for the 2023 National
- [00:04:31.330]Book Award in Nonfiction, glowingly reviewed in the New
- [00:04:35.630]York Times Book Review, and of course has many other achievements, and
- [00:04:39.570]I'm sure more to come.
- [00:04:41.230]The book itself is a departure from previous attempts
- [00:04:46.770]to write survey-level Native histories in that it is
- [00:04:51.750]really a survey of American history that highlights the vital influence and
- [00:04:56.490]participation of Native people in each phase of this nation's development from
- [00:05:02.210]the colonial era to the present day.
- [00:05:04.750]In so doing, Dr. Blackhawk incorporates a vast literature, I
- [00:05:10.550]would say staggeringly impressive literature,
- [00:05:13.750]that reflects the significant shifts scholars have made in depicting
- [00:05:19.170]American political and social history as a sequence of events
- [00:05:24.130]and negotiations shaped by ordinary
- [00:05:27.150]and marginalized people who have influenced the practices and
- [00:05:31.570]attitudes of politicians and jurists at all phases of history.
- [00:05:36.930]It really is such a treat to have you with us today. Thanks
- [00:05:41.290]not only for joining our Mellon series, but also for your leadership in
- [00:05:46.650]the academy and in our discipline for posing bold questions about the nature
- [00:05:51.910]of U.S. law and race, and in pursuing what I think are really
- [00:05:56.610]monumental tasks in the field.
- [00:05:59.850]I want to start our conversation by asking, you know, at
- [00:06:04.350]what point you came to see that something more than an incremental
- [00:06:10.070]work or scholarship, something more than a monograph in the traditional sense
- [00:06:16.010]of a "case study," was not only necessary but possible?
- [00:06:20.590]So, your first book, Violence Over the Land, taught us
- [00:06:25.450]a lot about the nature of violence as a fundamental practice
- [00:06:29.450]of American colonialism and westward expansion, particularly from
- [00:06:34.230]the perspective of Ute, Paiute, and Shoshone nations
- [00:06:37.430]in the 18th and 19th centuries.
- [00:06:40.410]In Rediscovering America, it's clear you're arguing that Native histories are
- [00:06:45.110]more than a subfield. My question is really what brought you
- [00:06:49.730]to that conclusion, and what steps did you need to take
- [00:06:54.110]to bring the rest of us to the water, so to speak?
- [00:07:00.670]Well, thank you for that very generous extended query
- [00:07:04.850]and for the invitation to be with you today.
- [00:07:07.650]It's really important work that you guys are doing
- [00:07:09.550]there. I'm not as familiar with all the aspects
- [00:07:12.570]of your grant funded initiative. I look forward to
- [00:07:15.830]learning more, if not today and the seasons to come.
- [00:07:20.910]I'm really honored to be part of your conversation, and I'm happy to speak
- [00:07:25.810]on behalf of the work that we've been doing here as well if needed.
- [00:07:34.670]You know, academic scholarship kind of comes in various types
- [00:07:40.850]of phases, and we're not often aware of some of the
- [00:07:46.530]currents that we either swim in or swim against until we're
- [00:07:52.970]sometimes, if we're using a kind of nautical metaphor of sorts.
- [00:07:57.610]And we're not often aware of some of the kind of fast moving currents
- [00:08:01.430]until they're either above our waist or even perhaps higher up on our core.
- [00:08:08.410]So, I'm someone who, in some strange way, has found their way
- [00:08:17.410]into U.S. historical inquiry as a life's kind of vocation and passion.
- [00:08:23.990]And have always understood that Native American history has
- [00:08:27.550]never been sufficiently regarded within this area. And so, I went
- [00:08:33.610]to graduate school, I took undergraduate classes.
- [00:08:36.830]I turned on the radio, you know, talked to friends
- [00:08:39.210]and neighbors, everywhere I would kind of essentially turn in
- [00:08:42.190]my everyday either professional or personal life,
- [00:08:45.130]I would encounter forms of misunderstanding
- [00:08:48.350]or often ignorance, occasionally prejudice, that,
- [00:08:52.910]you know, just not something I ever thought was very helpful.
- [00:08:58.430]So, U.S. history has kind of become a realm of
- [00:09:03.110]engagement to kind of work against some of these currents.
- [00:09:08.710]The exciting thing has been since I began doing this
- [00:09:12.690]and many other people have also either been doing this
- [00:09:15.410]or have become active, or there are now many, many
- [00:09:19.570]people participating in what I'm terming the Rediscovery of America.
- [00:09:24.910]And it once was that no one knew anything about Native American
- [00:09:28.410]history within the academy, largely or at least
- [00:09:30.510]within U.S. historical circles, but that has changed
- [00:09:33.150]dramatically in the last generation.
- [00:09:34.910]And so the ambition, the kind of really motivation to write this
- [00:09:38.590]book was to try to bring together this generation
- [00:09:42.070]of scholarly output.
- [00:09:44.150]Try to do it in a single volume. Make it intelligible for students and colleagues,
- [00:09:49.170]those friends and neighbors I just generally referenced, and to try
- [00:09:53.130]to kind of begin changing kind of commonplace normative assumptions
- [00:09:57.430]about various forms of American history.
- [00:10:01.310]And so the book has these kind of interventions
- [00:10:03.650]into kind of paradigmatic case study case areas of America history:
- [00:10:07.310]the Revolution, British North America or at
- [00:10:10.670]least New England, the West, and then Civil War, post Civil War era,
- [00:10:15.490]20th century America, the New Deal era, the Cold War, things of that nature.
- [00:10:20.450]I kind of try to bring an Indigenous historical lens of analysis
- [00:10:28.210]too. So I'm happy to talk about any
- [00:10:29.770]of those particular features. I know our subject today is race and law.
- [00:10:34.170]I'm happy to talk about what maybe somewhat technical terms
- [00:10:37.750]like plenary power or retain Tribal sovereignty or off reservation
- [00:10:43.310]treaty rights or more recent challenges to Indian constitutional or
- [00:10:48.210]this constitutionality of various Indian statutes like the Indian
- [00:10:52.930]Child Welfare Act from recent decisions.
- [00:10:55.090]But it's been kind of an exciting journey to this point.
- [00:11:02.354]I think you're reading my mind in terms of where I hope
- [00:11:05.139]we'll land in this conversation.
- [00:11:08.574]We did have a chance in our 100 level class to read a chapter
- [00:11:14.644]from your book, and I'll talk about that in just a minute. But I wanna
- [00:11:20.003]respond to your sense of Rediscovery of America as a campaign
- [00:11:24.703]or as a shared movement among scholars and among communities
- [00:11:31.050]who are really interested in looking more deeply than maybe mainstream or
- [00:11:35.140]conventional historical narratives have allowed.
- [00:11:38.340]And so one of the things that a narrative like yours
- [00:11:42.080]helps us to do in our project is link those broader
- [00:11:46.700]stories, those national stories to the
- [00:11:50.840]legal archives that we're really as a team focused on
- [00:11:54.200]bringing to the surface. So one of our areas of focus
- [00:11:57.440]is drawing on unpublished and unindexed legal collections, many
- [00:12:02.860]of which include Native petitioners, Native litigants, among others who have
- [00:12:08.940]been marginalized throughout U.S. history and so, of course,
- [00:12:14.140]a case by itself doesn't tell the full story. And
- [00:12:18.500]so connecting those individual cases collectively to larger narratives
- [00:12:23.540]like the ones you're sharing with us is really helpful.
- [00:12:27.120]So it's been great to encourage our students to think,
- [00:12:30.940]all right, here's a 1666 Maryland Treaty. Here's an 1880s
- [00:12:35.800]habeas petition. Where do we see that as, you know,
- [00:12:40.040]Native influence and engagement with the development of American legal history?
- [00:12:45.600]So on that front, our students read your chapter
- [00:12:50.500]on colonialism's constitution to help us understand
- [00:12:55.340]the importance of Native people and policy
- [00:12:58.160]in that constitutional era.
- [00:13:00.180]And that's one chapter where I see a lot of parallels between
- [00:13:05.760]your writing and Maggie Blackhawk's writing in terms of really insisting
- [00:13:10.980]that there has been a mutual dialogue in terms of Native legal
- [00:13:16.720]practice informing U.S. constitutionalism and U.S.
- [00:13:20.720]constitutional thought informing federal Indian policy.
- [00:13:23.740]But I wondered if you could talk about your claim from
- [00:13:27.780]that chapter that jurists in the early republic developed
- [00:13:33.520]federal Indian law as a solution to the problems
- [00:13:37.860]they were facing in constituting a new nation, we as a class
- [00:13:42.420]really enjoyed thinking about that construct.
- [00:13:48.440]You know, one of the kind of crazy things about American
- [00:13:52.300]history is, it's a lot less familiar than we've been told.
- [00:13:57.940]And so I, you know, like I said, I've had a fairly long
- [00:14:02.200]standing relationship with the study of this subject and
- [00:14:05.560]never really understood certain things until kind of, not forced,
- [00:14:09.760]but drawn to do so.
- [00:14:11.200]And so I was just really struck, in a kind of very profound way,
- [00:14:15.800]how ineffective the first government in the
- [00:14:19.320]United States was the Articles of Confederation.
- [00:14:21.780]And we all hear this term when we learn about the revolution, we all may
- [00:14:26.600]understand that the Constitution created some new governing
- [00:14:30.720]structure, but the original articles really couldn't work.
- [00:14:36.240]And we've heard of like Whiskey Rebellion and
- [00:14:39.120]other kind of forms of kind of civil unrest and kind of
- [00:14:43.080]necessary military or government repression that occurred during
- [00:14:46.860]this kind of brief period.
- [00:14:49.540]But I was really kind of taken with the invitation in
- [00:14:54.480]my own way to work through this period to highlight how
- [00:14:58.680]important Indian affairs was during this period and the kind of
- [00:15:05.060]consensual decision by the founders to seed all this delegated authority
- [00:15:10.820]to the new national government during the Constitution
- [00:15:13.200]around Indian affairs really kind of created kind
- [00:15:19.740]of a lot of excitement for me because I could understand
- [00:15:22.040]then that the subsequent policies that the federal government developed were
- [00:15:26.060]coming out of this kind of recognition. And so Tribal communities were still kind of
- [00:15:32.541]imprinted upon the fabric of every day political, and to a lesser extent,
- [00:15:37.671]legal life for the diplomatic thinking of so many
- [00:15:41.830]state founders that there was really no way around this problem.
- [00:15:46.660]And so, and some more recent work that I'm doing, I'm trying
- [00:15:49.020]to kind of piece together more of the kind
- [00:15:52.360]of declarations, anti-Indigenous ideologies with the kind of latent
- [00:15:56.500]themes that are kind of in chapter five of the book, but
- [00:16:00.760]really try to emphasize in this chapter
- [00:16:02.720]and other kind of venues that the Constitution is a kind
- [00:16:06.340]of dramatic departure in a whole set of ways, one of
- [00:16:10.460]which is a recognition of Native nations as inescapably a part
- [00:16:16.440]of the emergent federalist system that the federal government is building.
- [00:16:20.160]And so, we can't really think about 1787.
- [00:16:26.560]We can't really think about the early republic, we really can't think of
- [00:16:29.060]about American legal history without this recognition, but it happens all the
- [00:16:33.640]time of course, and I'm kind of been kind of somewhat of
- [00:16:36.540]a historiographical commentator about works
- [00:16:39.920]that just don't take this field seriously
- [00:16:41.840]and they just kind of perpetuate this kind of calcified
- [00:16:44.300]understanding of 20th century sentiments that are in many ways
- [00:16:48.560]still kind of with us. There's a kind of celebratory
- [00:16:50.920]exceptionalism around the Revolutionary Era
- [00:16:53.920]and the founding that is
- [00:16:55.040]kind of hard to kind of demystify, and I'm building
- [00:16:58.960]on the work of so many others who are working towards
- [00:17:00.840]these things to expose this kind of central dialectic in which
- [00:17:04.380]Indigenous power, federal formation are kind of inescapably intertwined.
- [00:17:12.660]And it's not then a coincidence that the ways federal
- [00:17:16.859]policy forms, both in the writing the Constitution itself, but in
- [00:17:20.500]the practice of treaties thereafter in subsequent
- [00:17:23.980]international diplomatic engagements like the Jay's treaty I
- [00:17:27.579]write about or even the Louisiana
- [00:17:28.820]Purchase Treaty, Indian affairs are kind of circulating in and around these kind
- [00:17:33.160]of deliberations and ways that historians just simply haven't
- [00:17:35.740]been sufficiently attuned to.
- [00:17:38.060]And I was really shocked even to see the Reconstruction Era
- [00:17:40.700]studies of the 14th Amendment and so forth to also kind of
- [00:17:45.060]excise this subject and so these are extraordinary scholars who work
- [00:17:50.240]to understand American political and legal history in certain ways, but they've
- [00:17:54.260]failed in others and so one of the fundamental failures
- [00:17:57.260]essentially of American constitutional and/or legal history in my
- [00:18:01.280]mind is an inability to see this kind of Indigenous
- [00:18:04.500]presence at every important kind of legal formation is this, particularly
- [00:18:10.880]throughout the first century of after independence.
- [00:18:15.140]Yeah, I think it was something that our students were really excited
- [00:18:19.480]about looking at in this way for the first time, to really connect
- [00:18:24.180]all of these moving parts in the way that you do in
- [00:18:26.820]that chapter, and to see the relationship between, you
- [00:18:32.680]know, early federal statutes
- [00:18:34.400]like the multiple revisions of the Trade and Intercourse Acts
- [00:18:37.780]for instance, which define, you know, who can have these treaty
- [00:18:43.100]relationships who has the virtue of federal authority.
- [00:18:48.920]Initially, seemingly a very benign set of acts but then within a matter
- [00:18:53.620]of years, introduce the use of military force to
- [00:18:57.120]weigh on those negotiations.
- [00:19:00.680]And then also thinking of things like the Northwest Ordinance,
- [00:19:04.660]the Naturalization Act as really being in dialogue with issues that
- [00:19:09.200]that early politicians had regarding Indian Country so that was for
- [00:19:14.340]us a very fruitful conversation and then you brought up Reconstruction
- [00:19:17.580]Era issues as well. You know, a lot of general U.S. legal
- [00:19:23.280]history scholarship when they cover the 14th Amendment
- [00:19:25.940]they sort of immediately say which by the
- [00:19:27.880]way didn't include Native people.
- [00:19:29.500]And as we all know that that wasn't formally established in the
- [00:19:33.860]Supreme Court until the Elk v. Wilkins decision 1874 so you have, you know,
- [00:19:39.500]this, or I'm sorry 1884, so you have this period of time where
- [00:19:44.040]it's not at all clear that Native people aren't going to be included
- [00:19:48.060]in the 14th Amendment, and it's through these lower court
- [00:19:51.320]cases that that kind of gets pushed on. So again to
- [00:19:54.800]your sense of rediscovering America in that way, I
- [00:19:59.860]think is important and you're guiding us along in that conversation.
- [00:20:03.920]Another bit that our students read in preparation for this
- [00:20:08.400]conversation was the Brackeen brief that the Sovereignty
- [00:20:12.920]Project team prepared.
- [00:20:15.940]I'll be asking you about that initiative here
- [00:20:18.480]in just a few minutes. And I think the influence of that brief on the
- [00:20:22.141]Supreme Court decision to uphold it was very evident.
- [00:20:27.200]But that ruling really gives scholars across Indian
- [00:20:32.420]Country some pause about plenary power, as you mentioned,
- [00:20:37.440]and so you discuss plenary power more explicitly in the chapter
- [00:20:42.120]Taking Children and Treaty Lands.
- [00:20:44.060]And I just wondered, you know what you would want our audience to know
- [00:20:48.520]about plenary power and its duplicitous role
- [00:20:52.800]in federal Indian law and Native history?
- [00:20:58.560]Um, so I like to think of some of these subject matters,
- [00:21:02.380]historically speaking, and so I'm always kind of mindful as best I can
- [00:21:07.920]to try to contextualize certain ideas or the formations or in this
- [00:21:14.960]case doctrines or the absence of a doctrine which plenary power really is.
- [00:21:19.540]And so it's really hard because I teach an undergraduate class called
- [00:21:24.480]American Indian Law and Policy.
- [00:21:26.300]I've been doing that for 15 years or so.
- [00:21:30.380]I teach a larger lecture class on American Indian
- [00:21:33.260]history, where law is like important obviously, but it's
- [00:21:37.340]hard to really understand certain practices and formations, because
- [00:21:43.520]they seem so dissonant with our received categories and presumptions.
- [00:21:49.740]So that's why I start with, you know, the emphasis
- [00:21:52.340]on the Constitution, the Commerce Clause, the treaties being the supreme
- [00:21:57.780]law of the land, the lack of the House of
- [00:22:00.000]Representatives participation in treaty-making,
- [00:22:02.360]which Jefferson is so upset with
- [00:22:03.940]in the 1790s. He's not so upset with it in the early 1800s when he
- [00:22:07.200]needs to get Louisiana through, you know, he'll, you know, so
- [00:22:10.420]these are formations, these are ideas, these are practices that
- [00:22:14.100]over time, take a certain weight.
- [00:22:16.140]But treaties were well-established practices and
- [00:22:22.940]doctrines throughout most of the 19th century.
- [00:22:28.140]And some of the most consequential treaties in U.S. history
- [00:22:31.420]with Native nations occurred in the aftermath of the Civil War.
- [00:22:35.340]The Treaty of Fort Laramie in 1868 with the Lakota. The Medicine Lodge
- [00:22:40.480]Treaty of 1867. Several just monumental treaties with the Navajo Nation in 1868.
- [00:22:47.560]These are like the signature, kind of, political formations of many
- [00:22:51.760]modern contemporary Indian nations.
- [00:22:54.940]They're occurring, however, at a time when Congress is also
- [00:22:58.320]reforming the Constitution, passing the 13th, 14th, and 15th Amendment.
- [00:23:03.700]Congress hasn't touched the Constitution in 60 years.
- [00:23:08.080]Now they're altering it three times in five years.
- [00:23:11.300]Congress used to be the most ineffective, divided branch
- [00:23:14.240]of federal authority. Now it's becoming the most powerful.
- [00:23:16.880]It's giving itself all this authority. It's putting
- [00:23:20.040]the federal government protection of equal rights essentially
- [00:23:23.740]into everyday life for U.S. citizens. It's essentially
- [00:23:28.740]reconstructing the second founding, so to speak, the nation.
- [00:23:33.260]And it's an extraordinary period, but it's at odds with that previous era and
- [00:23:38.400]many of the continuing forms, the treaty-making of the 1860s and so forth.
- [00:23:42.740]And so when Congress stops making treaties with Indian affairs in
- [00:23:46.560]1870-71 with this kind of a rider to an appropriations act, it's
- [00:23:53.780]entering into kind of a brave new world.
- [00:23:57.480]Treaties are no longer going to be the kind of formal diplomatic
- [00:24:00.500]mechanism for acquiring Western lands, which
- [00:24:03.280]they have been for almost a century.
- [00:24:05.300]They're no longer going to be the kind of formal resolution of
- [00:24:08.820]military conflicts with Indians as they've been for much of the last generation.
- [00:24:13.350]They're no longer going to be the recognized
- [00:24:14.900]forms of annuity payments and kind of federal commitments
- [00:24:17.880]to Indians as they've been for a long time. So what are they going to do now?
- [00:24:23.340]They're going to start passing new laws. They're going to start doing
- [00:24:26.240]new things. They're going to start taking children and
- [00:24:30.500]treaty lands eventually. They're going to try to assimilate these
- [00:24:32.760]Native nations, and they're going to do so in ways that are at
- [00:24:35.440]odds with their own practices and laws.
- [00:24:39.320]And so it'll be the Native peoples often saying,
- [00:24:42.240]well, wait a minute. You can't prosecute us for crimes
- [00:24:45.340]on our reservation state of South Dakota in, you
- [00:24:49.380]know, in Crow Dog, Ex parte Crow Dog.
- [00:24:52.320]Wait a minute, you can't prohibit, you can't take our lands
- [00:24:56.360]without our consent in Fort Laramie or in
- [00:24:59.160]Medicine Lodge Treaty in the background to
- [00:25:02.380]Lone Wolf v. Hitchcock.
- [00:25:03.470]So all of this kind of legal formation occurs
- [00:25:07.240]often decades or years after these histories start kind
- [00:25:12.480]of taking new forms. And it makes it this kind of subject matter, particularly
- [00:25:19.560]kind of hard to digest.
- [00:25:21.800]And that's kind of where I began. It's really hard to
- [00:25:24.880]understand that these new practices that Congress
- [00:25:29.540]begins doing in the 1870s, 80s, and 90s,
- [00:25:33.120]they are new practices.
- [00:25:34.700]Like, they don't have the authority to do this, but they're giving
- [00:25:36.780]it to themselves. And eventually the Supreme Court
- [00:25:39.280]says, sure, you can have it because this
- [00:25:42.460]is essentially your right.
- [00:25:45.440]The Congress has the authority to make decisions, it has a
- [00:25:49.320]plenary authority to abrogate a treaty with Indians. And so all of
- [00:25:53.380]a sudden, for the first time, the federal government is breaking its
- [00:25:56.640]own kind of treaty commitments, and not just breaking them, but essentially
- [00:26:02.240]allowing these actions to be held constitutional.
- [00:26:08.760]And so it's the absence of a doctrine that Indian
- [00:26:12.020]affairs falls into very quickly. And so
- [00:26:14.320]that the federal government can essentially kind of
- [00:26:16.740]do whatever it wants.
- [00:26:18.060]And one of the things that the Sovereignty Project has
- [00:26:20.000]been emphasizing, particularly through my partner Maggie Blackhawk's kind of
- [00:26:25.700]luminous publications of various kinds, is how these doctrines
- [00:26:30.619]end up shaping other aspects of U.S. life and legal practice.
- [00:26:34.220]Immigration law, war powers acts, executive authority.
- [00:26:39.880]Essentially, the absence of a coherent constitutional practice in
- [00:26:45.240]these areas is allowing for the creation of an absence
- [00:26:48.520]of constitutional practices in other areas.
- [00:26:51.300]And that's a kind of scary position to find
- [00:26:54.140]oneself, but it again goes back to kind of this original emphasis that
- [00:26:58.080]Indian affairs and Indian law are embedded in this
- [00:27:01.580]federalist system and fundamental ways.
- [00:27:04.240]And if we don't understand that kind of long-standing history and
- [00:27:07.460]those doctrines, we're not going to be able to understand when they
- [00:27:09.740]start appearing and informing and reshaping other areas.
- [00:27:12.900]And so that's what we're worried about with the Brackeen decision,
- [00:27:18.900]even though it was a majority opinion,
- [00:27:20.800]even though Gorsuch again writes these beautiful concurrences
- [00:27:24.000]or kind of opinions,
- [00:27:26.380]we're worried that people won't understand that the fact that Congress and
- [00:27:34.280]the federal government and state governments
- [00:27:37.460]have historically taken children from American Indians
- [00:27:40.160]shouldn't be seen as a normative action. And so your colleague
- [00:27:45.340]Margaret Jacobs has worked tremendously hard in these
- [00:27:48.440]areas and we worked very closely with her
- [00:27:50.660]in crafting our brief.
- [00:27:53.580]But state governments, in the aftermath of the Second
- [00:27:56.780]World War, became essentially co-participants
- [00:28:00.760]in the placement of Indian children into foster care and
- [00:28:04.040]social service networks to such an extent that it became
- [00:28:07.100]a national crisis for Indians.
- [00:28:08.340]And that 25, 30-year history of trying to retain one's
- [00:28:13.660]most precious resource, one's children within a community, ultimately led
- [00:28:19.940]to the passage of the Indian Child Welfare Act of
- [00:28:22.640]1978, which the Brackeen decision in June upheld the constitutionality of.
- [00:28:28.280]But in this conversation, in the opinion itself, in the oral
- [00:28:33.580]argument, there was no discussion of this practice of removing children from
- [00:28:38.440]their families and communities as an actual constitutional failure, as an
- [00:28:42.720]actual national tragedy, as a kind of set of real colonial practices.
- [00:28:48.900]And Maggie has written a lot about this and she often kind
- [00:28:52.340]of has to distill it to a kind of elemental point, one
- [00:28:56.760]of which is that nations that have their children removed struggle to
- [00:29:00.940]continue, or the removal of children from one's national
- [00:29:05.880]community inhibits their development.
- [00:29:07.680]So it's just this very basic kind of recognition
- [00:29:10.320]that if federal officials and or state authorities are actively
- [00:29:15.920]fostering or allowing the placement of American
- [00:29:20.600]Indian children into non-Indian families and
- [00:29:23.840]households and or institutional settings, as has
- [00:29:26.260]been historically the practice of the United States for well over a century,
- [00:29:29.980]until recently, until the ICWA law itself. If this isn't recognized as
- [00:29:35.620]a kind of national legal problem or failure or
- [00:29:39.880]constitutional failure, then we're not going to be able to
- [00:29:42.720]keep the protections in place, because we're going to believe that this
- [00:29:47.240]is somehow not in line with other
- [00:29:51.060]anti-discriminatory legislative initiatives like
- [00:29:53.880]around equal protection. Because that's the charge then, is that
- [00:29:56.880]these, the irony is that many of the legal strategies
- [00:30:00.760]used to implement guaranteed legal protections for minority communities are
- [00:30:06.680]now being used against Native
- [00:30:08.320]nations themselves in the services of destabilizing these forms of
- [00:30:14.340]Tribal sovereignty, essentially. So it's always going to be a
- [00:30:18.120]very delicate time for Indian Country, because this doctrine of
- [00:30:24.180]plenary power allows Congress to make decisions that are often not
- [00:30:34.060]fully either upheld, and the Supreme Court has been kind of taking too
- [00:30:38.860]much of an activist role in trying to interpret and/or reinterpret many of
- [00:30:44.160]these statutory findings. So it's a somewhat complex subject with a lot of
- [00:30:48.300]kind of long-windedness behind it, but that's kind of where this concern is.
- [00:30:55.180]Yeah, I think that your characterization of plenary power coming from an absence
- [00:31:03.000]of doctrine is just a really excellent distillation of
- [00:31:06.600]that otherwise murky concept.
- [00:31:10.260]And the students did read Maggie's article, "Power in Indian Country," which
- [00:31:16.520]I think is a really, for anyone who's teaching
- [00:31:20.420]legal history, it's an excellent read for a 100-level
- [00:31:24.560]college class. It really gets to this question of power and rights, and
- [00:31:31.220]some of that tension which of course
- [00:31:34.880]she elaborates in much more depth in the "Federal Indian Law as Paradigm
- [00:31:39.800]Within Public Law" article in Harvard Law Review. So, which I think
- [00:31:46.160]understandably we didn't ask our 100-level students to read, but is
- [00:31:49.260]something that we look at in some of our graduate level classes
- [00:31:52.680]to try to understand historically and in the present the way this tension
- [00:31:57.540]between power and rights has been used in really detrimental
- [00:32:01.820]ways across Indian Country.
- [00:32:05.420]You're getting into it a little bit but I just want to
- [00:32:08.680]acknowledge that, you know, both of you, as scholars
- [00:32:12.260]have devoted incredible energy and expertise to building community
- [00:32:17.300]in your institutions, both among
- [00:32:20.720]students and scholars, culminating most visibly for
- [00:32:25.740]you and the Yale Group for the Study of Native America, and your work with the
- [00:32:29.780]Henry Roe Cloud Series at Yale University Press.
- [00:32:33.420]Could you talk a little bit more about kind of the origins that,
- [00:32:37.800]or the impulses that brought the NYU-Yale collaboration with
- [00:32:44.320]the Indian Sovereignty Project.
- [00:32:48.350]Sure.
- [00:32:51.160]Strangely, as much as I seem to love U.S. history and practice,
- [00:32:59.100]I spend likely more time leading an administrative life
- [00:33:04.580]of various kinds: running initiatives, trying
- [00:33:07.020]to secure funding, or organizing events, and doing things of that nature
- [00:33:11.720]that I also see as very important. So I almost have
- [00:33:14.500]a kind of, I don't want to say equal passion, but I
- [00:33:17.060]have a very kind of comparable passion for
- [00:33:19.540]these other initiatives, because the infrastructure
- [00:33:21.800]for academic awareness is still really woefully lacking
- [00:33:28.400]for my field of Native American studies and, you know, after a very
- [00:33:33.160]relatively long period, I'm still the only Native American tenured
- [00:33:35.940]faculty member at Yale.
- [00:33:37.720]A few schools nearby, of kind of comparable vintage or pedigree,
- [00:33:42.740]have recently hired and/or promoted Native American faculty, but I
- [00:33:48.080]can count them all on one hand, so we're not like
- [00:33:50.880]in any way, shape, or form demographically positioned to
- [00:33:54.940]run departments or
- [00:33:59.060]staff, you know, curricular initiatives. I'd love to teach, I would
- [00:34:04.940]love to see Native American history taught, I don't know how you
- [00:34:07.000]organize it in Nebraska, as a two semester class rather than one
- [00:34:10.080]semester, because then you could like divide it in 1832 or something or
- [00:34:15.659]in a way that kind of gave time for each, essentially, era.
- [00:34:21.659]My book as you may know is divided in half at the
- [00:34:24.400]Constitution, and so there's six long chapters and each half of this
- [00:34:28.159]book, each of which took me much longer than I anticipated.
- [00:34:35.719]The charge then to bring programmatic administrative efforts to
- [00:34:42.580]bear within these spaces is kind of incumbent upon the
- [00:34:46.260]position and people handle these challenges differently.
- [00:34:50.670]I'm, for whatever reasons, drawn to some of these challenges in
- [00:34:56.840]ways that I think are necessary, and so I don't
- [00:35:00.060]have to tell people in Lincoln, Nebraska, that the
- [00:35:02.060]study the American West is an important feature of American history.
- [00:35:05.560]Right here your press series has been doing
- [00:35:07.140]this for I don't know like 100 years.
- [00:35:09.340]You have numerous colleagues and students and
- [00:35:12.620]courses and institutes, and you know, it's it's kind of in the water, and
- [00:35:17.080]I've been to Lincoln, so I know this
- [00:35:21.120]kind of experientially if not elementally. But I have,
- [00:35:24.040]my bookshelves are full of University of Nebraska Press books,
- [00:35:26.800]you know, things of that nature. I have the Lewis and Clark set right
- [00:35:29.300]next to me, for example.
- [00:35:30.780]So I'm always kind of shocked that in these venues, that's not the case.
- [00:35:38.120]And it's a challenge, because there's a certain kind
- [00:35:41.600]of insularity that that yields or brings. And so
- [00:35:44.760]we decided to build
- [00:35:49.140]a community of concerned scholars and students
- [00:35:54.400]around Indian sovereignty, in part to remedy
- [00:35:57.760]the absence of these subjects within these institutional settings. And
- [00:36:02.800]I don't know how
- [00:36:04.580]exposed your students may be to the structures of legal academic
- [00:36:09.240]training and or study.
- [00:36:12.680]But these are particularly kind of sedimented spaces.
- [00:36:19.040]And so Yale Law School
- [00:36:20.860]is across the street from the history department.
- [00:36:25.940]And it doesn't have
- [00:36:28.280]really much presence in and around Native American law. There's
- [00:36:32.880]a Native American Student Association I've worked with
- [00:36:34.820]in very various capacities, and so I've just always been shocked that
- [00:36:38.920]having been trained in the West, and you know, interested in these
- [00:36:43.140]subjects, that one can teach
- [00:36:45.040]the history of the Constitution without Native Americans in it. You can
- [00:36:48.440]teach American legal history without Native
- [00:36:50.080]Americans within it. One can teach,
- [00:36:51.860]you know, the study of contemporary life essentially in a legal perspective
- [00:36:56.240]without any bearing on these communities. I think that's a mistake.
- [00:37:02.160]A fundamental kind of erasure of a central feature of American history
- [00:37:06.460]that I'm familiar with, or at least trying to become familiar with.
- [00:37:09.640]And so our Sovereignty Project tries to engage and study and
- [00:37:13.520]work towards these initiatives, and it's partly because Maggie is a
- [00:37:18.940]federal Indian legal scholar and a practitioner
- [00:37:23.500]or at least, you know, has worked with the Native American Rights Fund and those
- [00:37:27.120]people in these areas, that whenever there's
- [00:37:30.760]an opportunity we can collaboratively join certain
- [00:37:35.660]initiatives. And so we did do
- [00:37:38.080]a brief before.
- [00:37:41.580]We did, we formed this group in 2015 in a case called Dollar General
- [00:37:47.560]versus Mississippi Band of Choctaw Indians, which is a
- [00:37:50.340]kind of civil jurisdiction challenge that the Dollar General Store
- [00:37:55.360]Corporation brought against a Tribe
- [00:37:57.700]to try to impede a civil lawsuit against an alleged
- [00:38:03.360]sexual crime by a Dollar General employee against a Tribal member.
- [00:38:09.040]And part of the reason that was really interesting
- [00:38:11.080]to me, is I just learned about
- [00:38:12.680]criminal jurisdictional cases,
- [00:38:14.280]and came to see that the civil jurisdiction was like the
- [00:38:18.820]next domino that could fall. And the criminal
- [00:38:21.760]jurisdictional challenge, people in the field know and
- [00:38:24.960]I write a little bit about this in chapter 12, is in a case in the 70s,
- [00:38:30.482]in part, a kind of backlash to the self-determination era
- [00:38:36.255]statutes and achievements of the 60s and 70s,
- [00:38:38.820]the Supreme Court started pulling back some
- [00:38:42.660]of the recognition of Tribal authority over
- [00:38:44.580]non-Tribal members and certain criminal acts
- [00:38:47.340]in a case called Oliphant versus Suquamish Nation.
- [00:38:51.180]The Attorney General for the state of Washington was
- [00:38:53.540]a future U.S. Senator by the name of Slade Gorton,
- [00:38:56.320]who had been State Attorney General during the Boldt
- [00:39:00.640]decision fishing rights cases of the early 70s. And so,
- [00:39:03.740]Gorton had that kind of long standing anti-Indian kind
- [00:39:06.760]of theory or practice that clearly was at work in Oliphant
- [00:39:13.750]from '80... '78, right? I'm sorry. I'm getting my dates mixed
- [00:39:18.820]up. It's been a long day already here. So Dollar General in 2015
- [00:39:22.660]was going to challenge the civil jurisdiction of Tribes
- [00:39:25.240]over non-Tribal members, and
- [00:39:26.640]so we wrote a brief that said, you know, Tribes have
- [00:39:29.180]always had some degree of kind of recognition of their authority
- [00:39:32.700]over non-Indians who enter into their communities.
- [00:39:37.260]They can marry into them. You know, all the kind of
- [00:39:39.700]southern Tribes who had a non-Indian
- [00:39:42.060]citizens who became fathers and wives or, you know, to Indian
- [00:39:48.240]family members. They clearly were under the jurisdiction of those Tribes.
- [00:39:52.160]And so I was really shocked when I was reading some of these founding
- [00:39:54.700]documents to see Washington and other kind of thinkers
- [00:39:57.060]or founders talk about how, well, if they leave our
- [00:39:59.720]jurisdiction and go into their–
- [00:40:00.860]and the treaties often say this– is if you leave our boundaries and go
- [00:40:04.880]into these Tribes, you're subject to the Tribe's jurisdiction. So the
- [00:40:08.160]fact that Dollar General can make these kind of claims was
- [00:40:10.920]just kind of at odds with doctrine and history. So I didn't do much of
- [00:40:15.160]that work because I didn't quite understand briefing
- [00:40:18.380]the way these other people do, but we kind of got together a team and
- [00:40:23.060]put in a brief that–
- [00:40:25.300]it yielded some results that were kind of exciting. So we kind of understood that
- [00:40:31.900]briefing was one thing we could do. It takes some
- [00:40:34.660]time, it requires research,
- [00:40:37.580]but if you have a sponsoring entity like the Native American Rights
- [00:40:42.100]Fund, or in our Brackeen case, we had AHA and OAH organizations. If you
- [00:40:46.860]have a sponsoring entity and the kind of Supreme Court practice at a
- [00:40:51.500]law firm or litigation unit, you can do this essentially pro bono.
- [00:40:57.580]And so this is time on our hands. This is like our time. This
- [00:41:01.160]is the time of the lawyers, the time of the students, but it's not
- [00:41:03.360]something that we're charging people to do or anything. So we're working really on
- [00:41:09.820]behalf of an idea or principle or practice, and that's
- [00:41:13.060]American Indian sovereignty.
- [00:41:14.660]And somehow, we got dragged into a whole range
- [00:41:16.380]of cases in the last couple years where we did a bunch of
- [00:41:18.680]these things. We're also trying to support scholarly infrastructure
- [00:41:22.440]around American Indian legal studies.
- [00:41:25.400]There's this incredible group of scholars, a small group
- [00:41:28.860]at Northwestern. We're trying to code all the Tribal constitutions
- [00:41:32.780]ever authored or written by Tribal communities.
- [00:41:36.240]Yeah, it's a great project. And I don't know a
- [00:41:38.480]lot about the actual details, but the students are like,
- [00:41:43.180]coding constitutions to see, okay, which constitutions have voting
- [00:41:48.280]eligibility structures that require people to live on the reservation?
- [00:41:53.980]Which ones have membership criteria that follow a kind of census descendant
- [00:41:58.240]form? Which have kind of Tribal council electoral practices that are, you
- [00:42:02.620]know, short versus long term? A hereditary life chief versus, you know,
- [00:42:06.540]whatever kind of practices the Tribes are developing, they want to kind of
- [00:42:11.680]quantitatively assess it. And I think the implication is
- [00:42:15.020]if people can understand, other Tribal members in particular,
- [00:42:17.800]can understand how other Tribes are responding to these
- [00:42:20.900]challenges, they then can remedy them within their own communities.
- [00:42:24.220]And so that's the hope I think of that initiative. It's one of a few
- [00:42:28.060]things we're doing, but it's pretty exciting,
- [00:42:30.600]because it puts us kind of in the
- [00:42:33.920]throes of either current policy formations or litigation
- [00:42:38.140]efforts or scholarly developments that might not normally happen
- [00:42:43.580]in a relatively sometimes, you know, siloed office spaces
- [00:42:48.680]around our own books and students, papers, and things.
- [00:42:52.120]So it's like another dimension of our practice that we're enjoying.
- [00:42:56.660]Yeah, it's been exciting to see the growth of initiatives
- [00:43:00.900]coming out of the Sovereignty project. We had Beth Redbird
- [00:43:04.140]as a guest last year with our Digital Humanities Forum
- [00:43:08.120]to talk about the Tribal Constitutions Project and
- [00:43:11.780]really think about
- [00:43:12.540]aligning those quantitative but also qualitative practices to
- [00:43:17.680]really inform and learn from Tribal constitutional practice.
- [00:43:24.760]It's been great talking to you, and I could definitely borrow
- [00:43:28.080]more of your time, but I know we also have audience members
- [00:43:30.560]who want to ask their questions. So I think at this point,
- [00:43:34.200]it's probably a good idea to turn it over to the Q&A.
- [00:43:40.900]I know we've had some students who submit questions and also
- [00:43:47.100]some of our other guests. So we have a question from
- [00:43:50.480]one of our students right off the bat.
- [00:43:53.080]What advice would you give to average students who
- [00:43:57.140]aren't majoring in legal sciences, but want to incorporate law
- [00:44:00.600]into their future professions? How can average people incorporate legal
- [00:44:05.360]studies into their professions if they're not lawyers or judges?
- [00:44:09.200]That's a great question.
- [00:44:11.540]And I don't think any of us are average. So I think we all have a
- [00:44:18.540]kind of capability for participating fully in various
- [00:44:24.760]kind of intellectual or professional or social initiatives.
- [00:44:34.100]And this crazy thing is, this law and policy stuff
- [00:44:38.320]is relatively new, even though it goes back to the
- [00:44:41.260]founding, even though prominent legal scholars and Tribal activists have
- [00:44:46.660]been thinking and doing Indian law for a long time,
- [00:44:50.460]it's not a kind of visible feature of many
- [00:44:54.440]contemporary professional programs.
- [00:45:00.480]So something like, for example, architecture is
- [00:45:05.780]a big deal program here on campus.
- [00:45:09.380]And we've had a few Native American students
- [00:45:11.300]not get a lot of guidance on their interest in that program
- [00:45:15.900]because there's obviously not a lot of Native
- [00:45:17.540]American faculty or studies.
- [00:45:19.620]So they end up in our kind of interdisciplinary Native
- [00:45:24.280]Studies space, and we talk with them, we get to know
- [00:45:27.500]them, and we potentially work with them.
- [00:45:29.940]And they're trying to do things like housing reform,
- [00:45:33.920]which is a huge problem in reservation
- [00:45:35.840]communities, especially when the federal government has
- [00:45:38.640]a housing system through the HUD program, essentially, that kind
- [00:45:44.540]of plops pre-fabricated or pre-designed
- [00:45:49.060]homes into communities that are not kind of
- [00:45:54.180]organized around normative forms of American familial, family structures.
- [00:46:00.540]So we had a Pueblo student interested in remedying the
- [00:46:04.900]kind of housing practices within the Pueblo communities of New Mexico,
- [00:46:08.240]because they have a long-valued intergenerational kind of
- [00:46:13.600]family-centered housing residences that the new homes that
- [00:46:20.000]the government is building aren't continuing.
- [00:46:24.640]So housing is just one example. And if you know Indian studies,
- [00:46:30.200]or perhaps some dimensions of Indian law, you can kind of enter
- [00:46:33.460]into this conversation in a way that says, okay, reservations are not
- [00:46:37.460]under the jurisdiction of states, but under the jurisdiction
- [00:46:39.880]of the federal government.
- [00:46:40.840]They have government-to-government relations with the federal
- [00:46:42.920]government, and thus are eligible for certain
- [00:46:47.880]federal commitments in housing, environmental protection, health
- [00:46:52.100]and human services, health more broadly, and education.
- [00:46:56.740]So all of these professional realms, an Indian law
- [00:47:00.860]and policy kind of perspective or understanding, proves really imminently
- [00:47:05.080]not just beneficial, but potentially marketable, because
- [00:47:10.260]Tribal communities themselves have grown prodigiously in the
- [00:47:13.780]last quarter to half century,
- [00:47:16.120]growing their economies, growing their governments, growing their school
- [00:47:19.580]districts, growing their farming capabilities,
- [00:47:22.620]growing all kinds of dimensions of their self-governing communities, often
- [00:47:27.160]with federal consent or contracting or various federal practices, most
- [00:47:34.240]notably, American Indian gaming practices.
- [00:47:37.500]So Tribal communities need people who understand these things, rather than
- [00:47:41.760]people who don't understand them. So a kind of law and
- [00:47:44.440]policy understanding could become a very kind of important form of
- [00:47:50.580]kind of professional development and a whole range of non-legal specific areas.
- [00:47:58.740]Yeah, I think you're right to point out the area of housing,
- [00:48:03.440]design, community development, economic development.
- [00:48:08.700]I know for a lot of our UNL students who are
- [00:48:12.040]in the College of Ed, having some of this background and
- [00:48:16.200]planning to go into K-12 education is really essential. So it's
- [00:48:21.720]good, I think, to be able to show that full landscape.
- [00:48:25.080]We have another question that I think does get to both your
- [00:48:29.600]interest and the themes of the Mellon Initiative from another one of
- [00:48:32.960]our students wanting to know about your thoughts on the formulation of
- [00:48:39.700]Indian as a race and Indian as a political or legal category,
- [00:48:47.180]which is something that has come up time and again
- [00:48:51.420]in terms of, as we mentioned earlier, equal
- [00:48:54.480]protection, but also has its legacies in treaty
- [00:48:59.140]law. So that's not something that our students always quickly are
- [00:49:02.840]able to wrap their head around.
- [00:49:06.000]And there is a kind of emerging urgency to this question, because we
- [00:49:12.520]may all know that the U.S. Supreme Court has
- [00:49:15.100]kind of heavily curved the consideration of race in certain
- [00:49:18.420]forms of educational admissions processes.
- [00:49:21.880]And there are some American Indian leaders and educational experts who
- [00:49:27.100]are trying to continue a kind of pattern of Indigenous Tribal
- [00:49:31.560]recognition as a kind of feature of, particularly
- [00:49:35.860]within state governments, a kind of state commitment to
- [00:49:41.060]upholding or maintaining kind of educational
- [00:49:46.040]commitments that public universities have often held with Tribal community
- [00:49:51.820]members. And there may be more of this type of
- [00:49:54.120]awareness and engagement if this kind of Landback Universities
- [00:49:58.520]initiative continues to kind of question the kind of essentially,
- [00:50:03.140]not perhaps constitutionality, but perhaps morality of the
- [00:50:07.620]Morrill Act of 1862, enabling the kind of large
- [00:50:12.040]scale growth of so many agrarian rural institutional
- [00:50:16.740]settings, often at the expense of
- [00:50:19.160]resident Indigenous populations.
- [00:50:20.780]So this is kind of a feature of the field that yields
- [00:50:28.200]one to ask, are Indians legally a racial community
- [00:50:35.520]or a political community?
- [00:50:37.680]And I think the answer is currently both, but primarily
- [00:50:45.080]in the doctrinal sense, a political community. Because
- [00:50:49.740]the equal protection challenge that we referenced in
- [00:50:53.300]Brackeen that may still be forthcoming, where it's still possible,
- [00:51:00.060]given the ambiguity of the ruling,
- [00:51:02.020]that someone could challenge this law, that because it
- [00:51:05.640]says that Indian families should have a– placement of
- [00:51:10.060]Indian children– there should be a preferential consideration for
- [00:51:13.860]other Indian families in that practice of child welfare considerations.
- [00:51:20.820]Is that legal? Is that constitutional?
- [00:51:24.640]And that's open for debate. And even though the majority opinion
- [00:51:28.320]of the Supreme Court upheld the law, they rejected the plaintiff's claims
- [00:51:32.320]on a whole range of other doctrines around state
- [00:51:36.420]authority called anti-commandeering things that are technical in ways
- [00:51:39.940]that I'm not super familiar with.
- [00:51:43.080]And Kavanagh also wrote a concurring opinion
- [00:51:45.320]that basically opened this subsequent consideration, where he
- [00:51:48.540]basically said, I'm happy to support this decision,
- [00:51:51.880]but leave open this challenge of equal protection.
- [00:51:55.380]If this were to move forward, the next domino to fall, so to speak, would
- [00:52:02.300]be the Indian hiring preference that has long been practiced within
- [00:52:06.800]the federal government's Bureau of Indian Affairs, which has come to
- [00:52:11.220]understand the necessity, over time, of hiring American
- [00:52:15.120]Indians into the structures of administrative oversight
- [00:52:18.660]that the federal government maintains for Native Americans.
- [00:52:22.520]And the initiatives behind this were often an attempt to integrate
- [00:52:33.140]them and integrate these governmental services
- [00:52:36.000]at a time when white or non-Indian employees were the vast
- [00:52:41.260]preponderance of reservation administrators and superintendents
- [00:52:45.580]and people essentially making decisions about
- [00:52:47.380]the everyday runnings of Tribal communities.
- [00:52:51.060]And so in a case called Morton v. Mancari, the Supreme Court
- [00:52:55.460]upheld what we would call preferential treatment of
- [00:52:59.960]Indians as potential employees within the system. It's
- [00:53:04.600]an Indian preference prioritization.
- [00:53:07.180]That need not be racial, because Tribal members can be Tribal
- [00:53:13.280]members of really a whole range of ethnic and racial backgrounds.
- [00:53:18.560]And this is why the Constitution Project from Northwestern
- [00:53:22.200]is so important, because it's really hard to clarify this
- [00:53:26.780]to non-informed or non-specialized audience members, so to speak,
- [00:53:33.380]broadly speaking, because Tribes have such differential policies of recognition.
- [00:53:38.480]There are kind of commonalities, but many Tribes have
- [00:53:43.720]long-standing practices that relate to Tribal descendancy roles from
- [00:53:51.360]the early 20th century when the federal government started
- [00:53:53.400]going around the country taking censuses of American Indians.
- [00:53:56.780]And so to be a member of a Tribe often has to
- [00:54:00.400]revolve around some descendancy, recognized
- [00:54:04.540]descendancy from a former Tribal member. And so the
- [00:54:07.820]first roles for many Tribes are these census records.
- [00:54:11.620]But, you know, four, five, six, potentially seven
- [00:54:15.940]generations later, or eventually seven generations later, these
- [00:54:21.420]descendancy roles won't have the kind of recognized
- [00:54:25.220]racial components to them that they once had.
- [00:54:28.980]And so Tribes, some of whom adopt the government's IRA
- [00:54:32.320]Cconstitutions, which is somewhat technical distinction here, but essentially the
- [00:54:35.860]government was really encouraging Tribes and often forcing them to
- [00:54:38.540]have their own constitutional governments in the New Deal era.
- [00:54:42.400]And so the government adopted these
- [00:54:45.080]quarter-blood descendant requirements.
- [00:54:47.340]One had to be essentially a quarter-descendant from one
- [00:54:50.320]of these original census members. And so that blood quantum,
- [00:54:54.280]as it's known, kind of requirement is like a terrible
- [00:54:56.760]regime of exclusionary practice and racial logic that pervades Indian Country.
- [00:55:04.140]But many Tribes are moving past that, they're
- [00:55:06.800]reforming their constitutions, they're accepting, developing
- [00:55:10.900]alternative practices,
- [00:55:13.160]and recognizing the essentially the increasing heterogeneity of Indian
- [00:55:17.660]Country. So that practice is all political, it's not racial.
- [00:55:22.300]And so the 14th Amendment challenge about discrimination hopefully over
- [00:55:25.360]time will be diluted by the political decision-making of Tribal
- [00:55:30.120]communities in response to these once racialized practices.
- [00:55:34.580]It's somewhat complicated and the most famous examples often are people
- [00:55:39.100]who've been excluded from Tribes like California Indians who recently taken
- [00:55:42.580]off of Tribal enrollment to kind of limit the number
- [00:55:45.020]of Tribal members so by increasing the eligibility
- [00:55:47.960]of Tribal members
- [00:55:48.820]for certain types of compensatory practices. Or kind
- [00:55:52.380]of more explicitly racist kind of practices by Tribes
- [00:55:55.040]themselves of excluding former freedmen from southeastern and or
- [00:55:59.820]Oklahoma Tribal communities who were married into and recognized
- [00:56:04.380]within Tribes at one point, but because largely of the
- [00:56:07.720]white supremacy of the regions around them, Tribes decided that
- [00:56:11.860]this wasn't a good practice, and began distancing and/or
- [00:56:16.640]excluding freedmen essentially from their census roles and membership roles.
- [00:56:22.140]So, over time, you know, these practices have been remedied and
- [00:56:25.980]reformed. And if you spend time in
- [00:56:28.820]any country increasingly you'll see this kind of
- [00:56:30.880]heterogeneity, much more evidently.
- [00:56:34.380]So I think that's where we're heading I hope, but at the moment, we may be stuck
- [00:56:38.480]in a kind of system of racial understandings
- [00:56:42.000]that are just too hard to get out of.
- [00:56:46.260]I think you're really good at anticipating where, where questions
- [00:56:52.080]are coming from, because in the chat we also have a
- [00:56:55.580]number of questions about what's coming next? What are the, you
- [00:56:59.520]know, sort of conversations that are gaining momentum
- [00:57:02.400]and gaining significance?
- [00:57:03.940]And I think you're pointing in a lot of those
- [00:57:07.100]directions and really stressing for both scholars and audience members who
- [00:57:13.400]have been focused on these kinds of questions for a
- [00:57:16.540]long time, but also newcomers to these issues, the really
- [00:57:21.040]deep complexity and diversity of issues throughout Indian Country that have
- [00:57:27.920]such strong connections to American constitutionalism
- [00:57:31.440]today, but also in the past. One of the themes that
- [00:57:34.760]I think has come up a lot in this conversation is
- [00:57:39.260]your concern with the way history
- [00:57:42.420]is invoked in Supreme Court and other judicial opinions
- [00:57:47.120]in really, really diverse ways. Right? Sometimes it's invoking a
- [00:57:53.720]history to support Tribal sovereignty, and sometimes it's invoking
- [00:57:57.940]a history that undermines Tribal sovereignty, and so for that
- [00:58:01.020]reason, I think historians will also be very close to that
- [00:58:05.040]conversation and keeping an eye on how these histories get deployed, frankly,
- [00:58:11.380]in a lot of ways in these cases, and we continue to
- [00:58:14.440]look at that in our class throughout the rest of the semester.
- [00:58:19.380]We are at time. So again, I really want to thank you, Ned,
- [00:58:24.520]for joining us this afternoon. The students have enjoyed
- [00:58:27.860]reading chapters from your book and also being introduced to
- [00:58:32.660]Maggie's work, both of which are just really important for I think all of
- [00:58:38.960]us trying to move this conversation forward.
- [00:58:41.140]I do want to let our audience know that this
- [00:58:43.840]is the first of three webinars this semester. So we've
- [00:58:47.860]talked a little bit about the SFFA, I have
- [00:58:51.800]to get the acronym right, the Students for Fair Admissions case.
- [00:58:55.080]We're going to come back around to that in our October 26
- [00:58:57.780]webinar. We'll be talking about affirmative action's origins and legacies, and then
- [00:59:02.340]on November 2, we'll also be talking about the afterlives
- [00:59:06.920]of the 14th Amendment and the way equal protection is being engaged
- [00:59:11.280]today, with Dr. Kate Masur. I will, again, thank you, Dr.
- [00:59:17.080]Blackhawk, thank my co-faculty Dr. Thomas and Dr. Jones and
- [00:59:21.520]turn it back over to our GRA Anne.
- [00:59:26.260]Thank you, Dr. Blackhawk and Dr. Jagodinsky for this conversation. That was
- [00:59:30.860]informative, clarifying, and frankly inspirational. It's
- [00:59:34.900]been an honor to have you here.
- [00:59:36.620]We're so grateful for your time and appreciate the way that
- [00:59:39.140]your projects are laying the foundation for
- [00:59:41.620]the questions that we're asking at the U.S. Law and Race Initiative.
- [00:59:46.480]I'd also like to thank our audience for watching and sending in
- [00:59:49.400]the questions, and to the U.S. Law and Race team for your support.
- [00:59:53.380]You can learn more about the U.S. Law and Race
- [00:59:56.320]Initiative at uslawandrace.unl.edu.
- [01:00:01.209]Additional information about our event series as well as
- [01:00:04.620]YouTube videos of our past events are posted at
- [01:00:08.547]events.unl.edu/uslawandrace.
- [01:00:13.300]We're thrilled to announce our next webinar
- [01:00:16.020]on October 26 from 12:30 to 1:30pm Central Time. Dr. Jeanette
- [01:00:22.660]Eileen Jones will lead a conversation about affirmative
- [01:00:25.800]action and U.S. history.
- [01:00:28.180]Thank you again, and have a great rest of your day. See you next month.
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