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New Harvard Law Review article by Blackhawk argues for centering Indian law in U.S. constitutional framework

May 10, 2019

For the first time in nearly 15 years, the Harvard Law Review has published an article on federal Indian law. In this groundbreaking article published today and titled, “Federal Indian Law as Paradigm within Public Law,” Penn Law 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.

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. 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 insightful 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, 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.

Maggie Blackhawk (Fond du Lac Band of Lake Superior Ojibwe), Assistant Professor of Law at the University of Pennsylvania, researches and teaches in the fields of constitutional law, federal Indian law, and legislation. Blackhawk’s recent projects examine the ways that American democracy can and should empower minorities, especially outside of traditional rights and courts-based frameworks. She is particularly interested in those formal legal institutions that empower minorities to govern and engage in lawmaking — petitioning, lobbying, distributed sovereignty, etc. — and how those institutions might be harnessed to better mitigate constitutional failures, like colonialism and slavery. Blackhawk’s research has been published or is forthcoming in the Harvard Law ReviewStanford Law ReviewYale Law Journal, and Cambridge University Press. The American Political Science Association, the Edmond J. Safra Center for Ethics, among others, has supported her empirical projects. Along with Laura Edwards (Duke, History) and Naomi Lamoreaux (Yale, History & Economics), she is leading a multi-year project for the Tobin Project’s Institutions of Democracy Initiative on Rethinking the History of American Democracy. Blackhawk also serves as President of the AALS Section on Legislation & Law of the Political Process and a Senior Constitutional Advisor to the President of the Minnesota Chippewa Tribe. 

This article was published in the Harvard Law Review and can be found here