Originalism and Indians
69 Pages Posted: 14 Feb 2019
Date Written: 2018
Indian tribes, in the context of U.S. constitutional theory, do not fit. They are an anomaly in American governmental structure. Tribal governments exist today within the constitutional framework of the United States only by virtue of acrobatic displays of rhetorical legal reasoning and mythologized interpretations of history. Originalist theory can provide a clear exit from the inconsistencies and inaccuracies underlying the foundation of federal Indian law.
Typically, scholars embracing an originalist position are thought of as conservative. A conservative position is typically associated with opposition to tribal sovereignty. In contrast to those traditional views, I argue that an originalist view of the Constitution can produce a very different constitutional understanding of Indian tribes that supports a robust construction of tribal sovereignty. Today, a number of originalists occupy seats on the United States Supreme Court, but their respective records on Indian law decisions are distinct. To advance an originalist constitutional theory supportive of meaningful tribal sovereignty, this Article compares the jurisprudence of Justice Thomas and Justice Gorsuch with respect to Indian law. These two Justices, supposedly cut from the same originalist cloth, provide a perfect opportunity to critically examine the complexities of originalism as applied to Indian tribes.
I offer a new originalist vision of federal Indian law and tribal sovereignty and suggest it fits squarely within the jurisprudence of Justice Gorsuch. I also contend that Justice Thomas’s record on Indian law reflects anti-originalist principles by reaffirming longstanding historical misconceptions of the fundamental precepts of the United States and applying contemporary definitions to constitutional terms. I end by identifying the longstanding federal Indian law principles that are fundamentally inconsistent with this view.
Keywords: Indian Law, Indigenous peoples, Constitutional Law, Originalism, Gorsuch
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