Dissenting Opinions

That Other Original Sin (with Maggie Blackhawk)

Episode Summary

Will is joined by New York University law professor Maggie Blackhawk to discuss federal Indian law and cases including Oklahoma v. Castro-Huerta and the upcoming case Brackeen v. Haaland. Will and Maggie discuss the legacy of colonialism and the Constitution, the separation of powers in Indian Country, and the government's broader constitutional duties. They then discuss the history of the Indian Child Welfare Act (ICWA) and what we might see happen regarding ICWA this fall. Happy Constitution Day!

Episode Notes

Will is joined by New York University law professor Maggie Blackhawk to discuss federal Indian law and cases including Oklahoma v. Castro-Huerta and the upcoming case Brackeen v. Haaland. Will and Maggie discuss the legacy of colonialism and the Constitution, the separation of powers in Indian Country, and the government's broader constitutional duties. They then discuss the history of the Indian Child Welfare Act (ICWA) and what we might see happen regarding ICWA this fall. Happy Constitution Day!

Episode Transcription

Will: Welcome to Dissenting Opinions, a podcast by the Constitutional Law Institute at the University of Chicago Law School. I'm your host, Will Bode. And in this special Constitution Day episode, we'll talk to Professor Maggie Blackhawk about Federal Indian Law and the Constitution. We'll talk, in particular about some pending and recent Supreme Court decisions such as Brackeen v. Haaland, and Oklahoma v. Castro-Huerta.

Will: Maggie, thanks for joining us.

Maggie: Thanks so much for having me.

Will: We try to sort of have one of these conversations to commemorate Constitution Day. And I feel like we're doing something a little more unusual, which is spending Constitution Day talking about some of the things that the Constitution-- well, I don't know, to say, it doesn't deal with very well, or it deals with them well, and we've forgotten how it deals with them. And maybe you'll guide me on that. But that's the treatment of the Native American tribes, the separate sovereigns that still maybe are part of this system.

I guess I just started by saying, well, we ignore Federal Indian Law all the time. Is that still true? Is that sort of too trite to say now? I will say I teach Indian law to my ILs, I teach them Santa Clara Pueblo v. Martinez. Some mix of outrages them and blows their mind. So, I do feel like it's not totally in the ether yet. But we see more scholarship about this area, we see more Supreme Court cases about this area, for better or worse. So, is it still being ignored? Or are we not ignoring anymore? Where are we?

Maggie: I think we're at a middling stage. It isn't the way it used to be. And I think that's in large part because of the Supreme Court. Because of specifically Justice Gorsuch's appointment to the court, you'd now have a Supreme Court who's actually competent on these cases. But just a small correction in that, the Supreme Court isn't actually hearing any more Indian law cases than it has in the past.

Will: Really?

Maggie: Often takes an inordinate number-- especially if you think of these cases as regulation per capita, it takes an inordinate number of Indian law cases each term. And it's done this for a very long time. But now there's more visibility, in part because the court is taking them more seriously. And also, because in many ways, law schools are taking them more seriously and allowing faculty who specialize in these areas, more voice, more visibility, but I think we're in a middling stage where it's more about representation, rather than a deep structural reform that I think true attention would require.

Will: That's great. So, out of the combination of McGirt and Castro-Huerta, surely almost everybody thinks at least one of them was radical, either the Supreme Court's decision, giving a bunch of jurisdictions to the tribes was a radical change, if you believe that the center is in that case, or the Supreme Court's decision sort of taking it back, but giving back a lot of jurisdictions of the state was a radical decision. And we have a pending case that I really want to ask you about, the Indian Child Welfare Act, that seems like a lot going on in that case,. I guess we don't know what's going to happen. But is it at least fair to say kind of, I don't know, more things are happening or more unexpected things are happening. And maybe that's Justice Gorsuch's influence, or I'm not sure.

Maggie: It's always been a little unexpected with the court's approach to Federal Indian Law. It's not predictable, but I think it is getting more visibility. And I think McGirt brought a certain level of visibility to Indian law. And I think more centrally and more importantly, what Justice Gorsuch is bringing to these cases is a deeper understanding of constitutional law in this context. For a long time, Federal Indian Law has been unmoored from constitutional law and constitutional theory. It's been treated as sui generis. And the court is now more and more understanding its roots in this area. Chief Justice Thomas did this to a certain extent beforehand. So, recall that McGirt was actually just drawing very heavily on precedent from a few years earlier, unanimous precedent authored by Justice Thomas Parker.

And in that case, again, the court was very aware in its treaty cases that the job of abrogating treaties was given to Congress to unilaterally abrogate treaties through statute, through some kind of congressional action, something clear, something unequivocal. And so, the court really in certain areas, you can call them radical, I guess I'm a little puzzled, because I've always found separation of powers to be more on the conservative side of consideration. I think it's provided more visibility to these issues, because the court stuck to those rules of law separation of powers principles, in a case that had broader implications beyond Indian country and Native people, at least as we traditionally conceptualize it.

But I think to call McGirt radical is a little puzzling, because I think the way that you've described it, I'd quibble with a bit. To say that the court gave jurisdiction to the tribal governments is a strange statement of law. Court can't give jurisdiction to a tribal government. The tribal government had that jurisdiction via a treaty which, at least under constitutional terms of the court has nothing to do with, even abrogation of that treaty. All the court did was look at the long swath of history and say that Congress hadn't abrogated the treaty. And then in Castro-Huerta, the court decided whole clause that the state just needed jurisdiction in a particular context. So, it ignored congressional action, it ignored the separation of powers principles that had driven it in McGirt, and instead plowed through with what it saw as best policy in that case.

So, I guess the question here is, what do we think of as radical? Do we think of a Supreme Court that is driven by its own policy objectives? Is that radical? Or is of course it's driven by rule of law principles and separation of powers principles, radical if the result is something that we disagree with? And I think I'm much more concerned about the former than the latter.

Will: The separation of powers framework does give me a more artful way to ask that question. Just in the domestic separation of powers context, we've had cases, maybe fewer now, but we've had sort of periods where the Supreme Court comes in and enforces some seemingly basic separation of powers principle. But where there'd been a long period of time where lots of people weren't doing what it said, like the ban on legislative vetoes and Chadha, or pick particular ones, whatever you want.

But you have times where the court says, "Well, look, it's true. A lot of people have been saying otherwise-- our youngest town, presidents have been taking sort of unilateral action without congressional consent in the past and the courts as well, it's been happening in the past, but I'm not sure why you thought that was okay." And maybe that's sort of greater analogy to McGirt in sense of-- it might be that right, the court is just enforcing what the treaty is required. But it is true that it was doing things that at least people of Oklahoma, people in Oklahoma government who don't have any power over what the treaties say, but who do have a lot of power in a kind of de facto sense in Oklahoma we're kind of ignoring. So, it was still changing practice even by doing something very ordinary to the law.

Maggie: Yeah. I think I would distinguish it. I think you're right in the sense that the court came in an instance where people on the ground had a vision of what the law was, and they believed that over time, their behavior could abrogate a treaty, especially the state government. They felt that they could, over time through their actions of law breaking, essentially abrogate a federal treaty, which, again, is puzzling to me from a vertical separation of powers perspective. But I think the way I would distinguish this from Chadha, for example, which is the court coming in and saying, "No, this is what the Constitution requires. And you, Congress, has been essentially trying to put their consensus and the president even trying to circumvent this. And so, of course we're going to start to go back to our constitutional principles."

What you have here is the Congress advocating treaties and other instances, just not this one. And the court is coming in and saying, "Well, this is the constitutional rule, and we're not going to change that constitutional rule of Congress unilaterally abrogating treaties." I'm concerned with that rule. Generally, I think it's a little bit puzzling that we do allow Congress to abrogate treaties in that way. But the court isn't actually coming back and enforcing anything. It doesn't actually have that power. It's not returning to any fundamental principle. It's instead saying, "Well, I think that the constitutional role should be that state governments can, through their beliefs and behaviors, abrogate treaties." Which I think is even more problematic than thinking of the Congress unilaterally abrogating a treaty.

Will: If dissenters had said instead, "Well, we agree Congress has to abrogate the treaty. We think Congress did. Maybe not quite in explicit terms, maybe not they didn't use the magic words, but we think they enacted enough laws that it kind of counts in the way we sometimes judge repeals." That will be less radical outside of Supreme Court.

Maggie: Yeah, what is the less radical, especially if they were looking at congressional action that wasn't deeply problematic? So, this gets a little bit beyond the question of separation of powers into what I think-- of course, I would love for us to do the basic level of constitutional law and adherence to public law principles and rule of law principles and federal Indian law. That's the basic level floor that I'm hoping for. But in reality, I think that we can, as a constitutional culture, aim higher than that to try to also understand the problematic rules that we develop around American colonialism, it's ongoing project, and the way that we approach it is a constitutional democracy. And so there, what you had was to the extent that the dissenters were trying to argue for a rule, looking at congressional action-- And they had a tough time of it, of course, looking back at the court's own articulations of the standards saying, "No, no, no, abrogation of treaties. It is a long-standing rule, not just of our own domestic constitutional law, but of international law that we preference sovereignty. And if you're going to abrogate sovereignty, we see this in the federalism context, I see this in a national context. You need to do it clearly and succinctly."

And what the dissenters pointed to the only thing that they could point to, in looking at what Congress had done, was criminalizing a colonized government and trying to abolish its political organization. Which, to me-- let's drill down on that for a little while. I would even argue that that was the defense's weakest case. And reality, what they were trying to argue for was that people on the ground-- and you heard this so much more visibly in the context of oral argument, people on the ground in Tulsa, what were they going to think of the Supreme Court, if they woke up the next day, after McGirt and they were within an Indian reservation, how could that possibly happen? So, the radicalism of that outcome to the court was, at least to the dissenters, with too much to bear. And they wanted to bend the long-standing rule to have the court look to the leaf on the ground rather than congressional action in the context of treaty abrogation.

Will: The court has done that in the past though, right? I mean, this is sort of where you're getting at and talking about the different kinds of petitions we've had. Whether it's Lone Wolf v. Hitchcock or Johnson v. McIntosh, there are times the court is kind of when it deals with tribes, it's jettisoning the normal rules, and applying instead a norm of what would other white Anglo lawyers acceptable to be?

Maggie: [unintelligible 00:11:55] it was a clear congressional abrogation of a treaty that was essentially the court saying, "No, we understand --" Plenary Power Doctrine, I think, is constitutionally problematic. And we hear more and more about the problems of unenumerated powers that are not limited by the Constitution. However, at least in Lone Wolf, the court was sticking with even more closely to Justice [unintelligible 00:12:24] initial formulation of that doctrine, saying, "Well, what the court really--its job in the context of plenary power is to roll over, apply very little judicial review, rational basis, if any, and only look to see what the political branches have done in these contexts."

And that's all the more true when you're looking at treaty abrogation. And so there what you had was a clear abrogation of treaties, and it was fine, but it was unilateral. But at least there, the Congress had done something. Whereas in McGirt and Franklin Castro, where it says you want to get there, Congress had not done anything in McGirt to abrogate that treaty. And then, Congress had done quite a bit, 200 years of quite a bit to regulate state jurisdiction within Indian country, but the court just disregarded that. And we can look back to those cases and see the problems. And then, I don't want to argue that they are perfect. 

But they were, frankly, better than where the court is headed right now. And I think in other context, there are two distinct lines of doctrine. I think maybe you're thinking of Olymphant, where the court has taken an affirmative role. It's something that I called it dormant Plenary Power Doctrine, where it just decides, "The Congress hasn't done anything here to abrogate tribal sovereignty. But we don't believe that power is something that tribal government should have in the context of the United States Democracy. And we're going to take it away." And that's something you do see in another line of cases looking at tribal jurisdiction largely over non-Native people within Indian country.

Will: Good point, a more recent case, I mean, it's a few decades ago, it's 50 years old now, but it doesn't go back as-- Okay, the idea of applying normal Public Law standards to tribes, we've got the-- we're falling short of even that. And then, you mentioned briefly that you'd like to see us do better rather than worse. What does that look like in the Blackhawk regime? What do we then moor ourselves to? What do those better principles actually look like?

Maggie: What you see in Justice Gorsuch's opinion that he's drafting for the court now is a bit of a tussling with the concept of American colonialism as a problem for constitutional democracy. And he is looking at it head on. He begins of course, McGirt at the end of the Trail of Tears with a promise. I personally would quibble with common treaty law promises. However, that, at least-

Will: Just promises are unilateral and treaties are bilateral, is that the-?

Maggie: And one is law, and one isn't, a norm at best. So, you have an approach to-- he's trying to invoke some of the moral weight behind the problems that we're encountering. And I think beginning to see a bit of a reckoning with American colonialism in that context. But I do think that a broader tussling with what American colonialism has wrought, for better for worse, because Native people have pushed back and resisted and survived in important ways and shaped the American government in very important ways and the constitutional framework in very important ways, in ways that make the United States very exceptional within the world and its treatment of its indigenous people.

But to actually start to understand that that is part and parcel of our constitutional law, constitutional framework. It is not just that a window dressing of there are tribes, and the Constitution doesn't apply to them except through statute. And isn't that lovely? But instead to actually start to dig deeply into questions of executive power, questions of treaty law, and its formation.

And I think, importantly, understanding that our development of these piecemeal doctrines across immigration, the territories, and federal Indian law are themselves brought together and important and operating across similar lines, you could start to see patterns within them. And problematic patterns, in many contexts. Also, good patterns in the sense that we do have a recognition of inherent tribal sovereignty, but problematic patterns across them.

So, I hope to tussle with those anti-canon doctrines in ways that are intelligent. So, not let's just overrule the Plenary Power Doctrine, which we're seeing in the context of the insular cases where more and more folks just want to overrule them, and turn Puerto Rico into a state, but to take it a step further and understand that our constitution knows not to split the Louisiana Purchase, it stretched to get us here. In many ways, it can get us out if we start to really think long and hard that we are both a constitutional democracy and an imperial government that holds subordinated colonized governments within our territorial borders. And how can we start to give our national government power to begin to mitigate that process.

So, not just to put the switch, as we have claimed in the context of the Philippines to turn sovereignty on and off, and basically, that's it. But to start to develop frameworks, recognize that our Constitution-- I use the word 'recognize', because I think the recognition power might be at the heart of it, but to recognize that our Constitution has the frameworks within it to be able to mitigate American colonialism, to take these governments and build a framework that will move them towards whatever form of self-determination they want to move towards. Whether that's a statehood, whether that's complete independence, whether that's something in between. But to start to see that the national government has a space for that and has the power to do that. Otherwise, what we're doing is trying to push the Constitution back into the Plenary Power Doctrine in problematic ways, which we saw in efforts around Puerto Rico and the appointments clause, and trying to instead to take that base level and say, "Okay, our public law principles need to be applied here," which means, potentially Title 25 of the US Code, which is titled Indians is unconstitutional race-based discrimination. But to instead reach a little higher to go, "We are a colonial government, we have been a colonial government since the founding-- our constitute-- our founding documents, all of them recognize that we were an empire aspirationally and at the time of their ratification, and so we can hopefully constitutionally do better to find the power to move ourselves towards a more perfect union and away from the Imperial government that we started as. And to confront that other original sin in formulating our constitutional law moving forward."

Will: So, I think about the public law, how law will actualize that. The sort of the naive plenary power version of that would be okay, that sounds like an agenda of legislative constitutionalism. That sounds like Congress should enter into more negotiations with the tribes and figure out which ones want the status of statehood and work towards that. And for ones that don't want that status, we should create a new legislative status and do that. In that sense, taking Puerto Rico and the like as the models. That'd be the baseline plenary power version. But if we're moving beyond that, then are we going to live in a world where is the idea that it won't just be up to Congress. There will actually be things that Congress has to do or things that Congress can't do? There'll be limits or requirements on Congress' power and what would those look like?

Maggie: So, the initial, and I think, the most important limits on Congress' power would be that we wouldn't recognize as legitimate congressional efforts to further the colonial project. And so, efforts to extinguish or criminalize tribal governments wouldn't form the heart of our constitutional rules and we would question Justices if they put forth a test that believes that the criminalization of colonized governments was a legitimate form of treaty obligation, for example. So, those sorts of limits-- and we can see, of course, during the reservation era, in particular, where the federal government, largely through its administrative apparatus, built detention camps on reservation lands, lands that were held by Native nations by treaty, and regulated the lives of Native people to the ground.

Under our current formulation of the Plenary Power Doctrine, we can't seem to make sense of the limits of it. We want to say that the Congress can do that again, that the Congress can essentially take the Indian Citizenship Act that nationally made clear that Native people had citizenship at birth, because Native people are exempted from the birthright citizenship clause, and the Congress could essentially just repeal it. And the Plenary Power Doctrine is currently formulated is itself no holds barred.

And many want it to stay that way because the current Supreme Court believes that it can essentially move forward with a project where it applies the Constitution piecemeal to again further the colonial project, to abrogate treaties, to move reservation borders, and to limit the land holdings of Native people. So, limit the sovereignty of tribal governments using the constitutional rights of non-Native people. And so, those sorts of limits all across the branches. So, this wouldn't just be-- of course, the Congress would be at the forefront of this as it has been, for the last 100 years, at least in a more positive sense, through the development of the IRA, The Indian Reorganization Act, the framework that still governs the government-to-government relationship between the United States and tribal governments. So, the Congress would be at the heart of it.

And I think it's an important institution to be at the heart of this, given the way it's set up to engage with the public, especially with Native nations and Native people, it's done a lot better job. But we would start to see limits across the branches in what they can and can't do, and hopefully to force a conversation where we're not just talking about, "Okay, what did Congress do?", but we're able to distinguish, for example, reservation era policy, where we put Native people in detention camps, and say, "Well, let's not use that as an example of what we should do today," or, "Let's not use that as a basis to abrogate tribal sovereignty today," which is something for some reason, we can't seem to do at the moment. And so, that's a basic limit. I can, of course, offer more, but I think that would be at least a start.

Will: That's a great example. And then, can I ask-? Can I take it one level more concrete? I sort of think about not just the kind of wholesale criminalization of a tribe, but there are tons of prosecutions in federal court every day under the Major Crimes Act for the federal government intervening and what takes place on a reservation. Should we kind of ask in every case, "Well, is this criminal prosecution actually furthering Native independence and sovereignty? Or is this prosecution in some way more of the product of colonialism?" It depends on who was the victim, and who's the defendant? What is the crime? And how does it fit into the tribe's norms, which should we asked that sort of at a retail level? Or is it the kind of question that would only ask at the wholesale level?

Maggie: Yes, it's deeply ironic that question, the way it's formulated, because the Supreme Court essentially just took that approach in Castro, where it brought a civil balancing test of preemption into the criminal context, which no one in their right mind thought that the court would do. Because it's a case-by-case determination of whether or not a state criminal statute applies, anyone concerned about criminal legal system, I think, would be horrified by it. Of course, the court tried to bend it in particular way.

So, to answer your question directly, no, I don't think it would be done piecemeal, on a case-by-case basis. I think that the Congress, as it has done in regulating criminal jurisdiction within Indian country has long had incredible nuance in the way that it's approached jurisdiction, especially criminal jurisdiction within Indian country. It has done better work than the Supreme Court has done within the context of civil jurisdiction.

There are problems there. So, the big frameworks are largely the federal government offering certain amounts of criminal protection through the Major Crimes Act, through the IPCA and ACA, but all also, in certain context, Congress has conferred upon state governments the jurisdiction over crimes by and against Indians with Indian country as well as allowed state the option, especially with tribal consent now, to assume that jurisdiction. And so, the Congress has done a good job of essentially trying to gauge which tribal governments are at which stage to be able to see whether or not they want to assume jurisdiction in a particular context, whether they have the capabilities, what they need to rebuild their own governments that in many cases have been criminalized, and not recognized to the point of destruction, or at least weakening over time. And we can do more of that. We can do more of pilot programs, which the Congress has done with the VAWA reauthorization that banded the recognition of tribal criminal jurisdiction over non-Indians both in 2013 as well as in 2022.

There are [unintelligible 00:26:07] all over the place, the way that federal Indian law functions is a collaborative lawmaking process that is hard to distinguish from a translation of the treaty power. So, if you want to quibble with the 1871 appropriations rider that allegedly amended the constitution to stop treaty making the tribes, if you have a problem with that, you can look at all of the statutes and the lawmaking since then, including congressional ratification of essentially treaty substitutes, which are agreements between state governments, tribal governments, the federal government, and see the way that collaborative lawmaking has been really well developed, and could be further developed, especially if constitutional scholars started to understand that it existed, that it was exceptional and important, and the work that it's doing in mitigating American colonialism and start to convince, of course, the Congress that what it's doing isn't just odd. It's not just sui generis, it's not just something where tribal governments have captured the institution, but it's actually performing a fundamental constitutional role in furthering those really amazing super statute infrastructures around tribal governance and collaborative lawmaking.

Will: So, I just have to ask, you mentioned this 1871 statute, which in an appropriations rider, Congress purports to ban treaty making with the Indians but preserves existing treaties. Do you want to quibble with that? I wasn't sure which side you were taking with that.

Maggie:Well, I quibble with the way it's been read since then. The court has taken the approach that the 1871 appropriations rider, which is maybe just an indication that the Senate isn't going to take it anymore, it was largely concerned by the house over treaties at the period. But the Supreme Court has read that 1871 appropriations rider to essentially mean that not only has that treaty making practice with Native nations that been ended somehow by an appropriations rider, but also that it somehow diminish tribal sovereignty and diminished the recognition of tribal sovereignty, because the Congress in 1871, through an appropriations rider, signaled that it would move away from the treaty process and instead, move to legislative Executive Order treaty substitutes.

So, you can see reservations that were established since then, by executive order, and by legislation, it's recognized tribes through legislation and executive order. It's ratified treaty substitutes between state governments and tribal governments. So, you can see the way that the Congress and the executive have operated to continue with collaborative lawmaking. But the court has read that pivotal moment almost like an amendment to the Constitution, which many see the text of as a recognition of inherent tribal sovereignty. Because of course, you have the Indian commerce clause that says tribal governments, alongside foreign nations.

And the court is trying to read that moment is this incredible pivot point in the recognition of inherent tribal sovereignty, and it sort of lost again, it's public law principles that it is not the determinant-- It doesn't make the rules in the context of recognition of other governments and it instead probably shouldn't look to an appropriation either over and over and over again for that principle, because it's essentially giving that appropriations rider the power to amend the Constitution permanently, despite congressional and executive action quite to the contrary since then.

Will: So, is the problem looking at the appropriation rider? Or is the problem just that they're wrong with that one? Or is the problem the power of Congress? If Congress had passed the statute 1871 that said something like, "The Anti-Tribal Recognition Act, it is the policy of the United States that no Indian tribe is a sovereign anymore, and we will no longer deal with them in any of the ways of sovereignty. Of course, they remain precedent, and we will still regulate them under the Commerce Clause." Is the idea that statute would also be nullity, it'd be wrong for the Supreme Court to enforce that statute, or is the problem just that the appropriations rider--? Obviously, it doesn't say what I've just do described.

Maggie: I think again it's that base level. And then, there's the aspirational. So, base level, I think the first few things are wrong at the aspirational level, I think that the last thing is a little bit wrong, but also still on the base level wrong, because I think you and I both know that when it comes to recognition of foreign governments, where does that power really lie? Is it in the Congress? Maybe not. And os, since the executive has continued to recognize tribal governments, perhaps we can, again, put our basic public law principles down and go, "Yeah, there might be constitutional problems even with a statute that says we don't recognize these tribal governments if there's a conflict with the executive and the president over time," which there has been.

Backing up a little bit though, to those other questions of, is it a problem with an appropriations rider? So, yes, I think that's right. Looking at what deliberation, consideration, hearings, whether or not this is really a thought-through process, we can think of this in terms of informal constitutional change. Is this a constitutional moment? Is that a super statute? Likely all the above? No. And so, we can't even fit this into our moment of informal constitutional change. Then moving on to does Congress have the power to amend the Constitution to say no more treaties in this particular context, I would also say no. At best we can read that appropriations rider as a moment in time, again, one that I hope we understand as part of a period where the United States was building detention camps on reservation. So, it's not really a point we want to keep revisiting. It's not a moment of high policy that we think is wonderful to replicate.

But even if we look at it from just a basic question of separation of powers, does the Congress have the ability to do that? Let's just say it did it in a wonderful statute and said, "No more treaties." Do we think that that ends the power to make treaties with tribal governments? No, but for some reason, our constitutional culture cannot really discern that we could make potentially treaties tomorrow with tribal governments. But we also need to understand that over the 20th century, we're making fewer and fewer treaties and we're moving more and more towards legislative executive agreements, even in the context of international law and other foreign sovereigns. And so, maybe we should just start to understand the larger constitutional shift and that native governments are part of that.

And the court's read is just problematic on all of those levels. Really, though of course, the ultimate being, why should we continue to honor the statute during this period that was problematic and was an act of deep colonialism? If the Congress had passed the Anti-Tribal Sovereignty Act of that timeframe, why should we keep reinvigorating it and returning to it? That's the ultimate, but I think-- we can hit the problems with it through our basic, IL Con Law arguments, so I'm not sure why we can't get to that basic level, at the very least.

Will: Before we run out of time, can I cast our eyes forward for a second to the fate of the Indian Child Welfare Act? This is a case pending for this term with a whole blizzard of constitutional issues from a sort of equal protection challenge, to a commerce clause challenge, to apparently a non-delegation challenge, which didn't seem very serious to me, but you never know. And you have also intervened in this case, as I think you have in several of the past cases with an amicus brief, bringing together a bunch of historical evidence, and it's been underappreciated. So, can you tell us a little bit about what you think the court needs to know and why?

Maggie: Thank you so much. Yes, we filed on behalf of the American Historical Association and the Organization of American Historians, two of the largest professional organizations for historians in the United States, a brief aiming to clarify some of the history around the Indian Child Welfare Act in the context of two, I think, very meaningful challenges to the Indian Child Welfare Act. One is anti-commandeering. I think the non-delegation was a little bit less concerning for folks then, at least in the Fifth Circuit than the anti-commandeering challenge. And, of course, the equal protection challenge that the Indian Child Welfare is unconstitutional race-based discrimination. Again, not really sure what the standing, so it could be against Native children, it could be against non-native parents, but we'll have to suss that out. 

So, the brief is really aimed at trying to unpack the history of the Indian Child Welfare Act itself, and 20th century history that led up to the Indian Child Welfare Act, and it offers for the first time, survey of research with some additional primary sources in it the ways that state governments which-- if you think of traditional state functions, of course, we think about family law and regulation of children, of course, and foster care and child welfare. The states are, of course, arguing that that's at the heart of traditional state function, that is the heart of the state police power. And in many ways that would be right, except if you look at the 20th century history, the state governments, as we were talking about, confronted federal powers that had been carved out over reservations and also tribal members since the founding. And we're confronting in the earliest years of the 20th century the Indian Citizenship Act that made Native people citizens for the first time. That was during the same timeframe where you had a huge expansion of federal welfare programs like the Social Security Act. State governments-- and the closing of the boarding schools again, where the federal government said, "Okay, this is it. Native people, Native children, state governments are now citizens/ Your problem, you should deal with it. So, we're going to close the boarding schools and these kids need to go into public schools in the States. They need to go into state foster care programs, to the extent that they exist." They were just getting essentially assembled at the time, "but Native families need to go into these poverty programs."

State governments refused. They refused jurisdiction for a number of reasons. One was that they couldn't tax trust lands that were held by Native people, even tribal members who lived off the reservation that still held trust lands, they couldn't tax their property, to pay for all of their services. And they also felt that Native people just had a particular relationship with the federal government, a special status that made them not fall under state jurisdiction, especially Native children. And so, it was only after the federal government for many years paid for often 90% to 100% of state programs, including providing and paying for state welfare workers, and requiring by contract, a government to provide welfare services and poverty services to Native children, that state governments decided grudgingly to administer the federal program over Native people because they didn't believe that Native people fell into their programs, even Social Security even after the federal government issued opinion to the contrary and there were lawsuits brought against the states actually even threatening federal funding for many states writ large.

And so the story of jurisdiction in the context of Native people, and the story that's getting told in Brackeen is that ICWA really came out of the blue, that state governments misbehaved, that it was a continuation in some ways of racism, a racism that the federal government undertook with boarding schools, that the state governments then undertook through the foster care and adoption process which removed, I think, 100,000 out of 400,000 Native children at the time from their parents, and that the ICWA came out of nowhere, to start to regulate in part what state governments could do, but also to strengthen tribal governments. And then, of course, if you had a federal rule that comes in and tells state courts to take keep records that provide notice that that may raise some anti-commandeering challenges.

However, if you look at the history, what you have is 50 years before the Indian Child Welfare Act, state governments had been agreeing to substantive standards and federal oversight over Native children because they never thought as part of their core state function. They refused it entirely. And so, when the federal government stepped in with ICWA, it wasn't regulating state courts for the first time. It was stepping in to start to reset a federal program that it had essentially conferred to state administration through the spending power for 50 years and tried to correct what had been a problem created by state governments. And rather than race and discrimination against Native children, it was really concerns over the state's bottom line, where they were not getting funding and they didn't want to use their own general welfare funds to support Native families. So, it was much cheaper for them to take Native children out of poor Native families, especially families they had refused to bring into their general welfare programs to support entirely and to take those Native children and just put them into middle class homes that did qualify for services and didn't need them. And those are largely non-Native family. So, under the infrastructure where Native families are excluded from these family programs, non-native families are going to be better supported and more economically stable. It was dollars and cents. And so, the story that we tell about ICWA, it's really an untold story and it's a problematic history that throughout the brief, one that I think presses on both anti-commandeering challenges as well as equal protection challenges.

Will: This is a fascinating, untold story, and I learned a lot from reading the brief. I am curious why it should matter to the constitutional challenge in the sense of --? Earlier, we had some themes like, "Well, the state government's behavior doesn't change the scope of jurisdiction." That's the whole problem in McGirt and Castro-Huerta that we've [unintelligible 00:40:49] about or that Congress can't amend the Constitution either even whatever the history was. So, I guess, in that sense, from a matter of the first principles public law, why does 20th century history change the matter to the outcome of a constitutional case?

Maggie: The difference between McGirt and Castro-Huerta and Brackeen is that Congress didn't actually give the states jurisdiction in this context. What the states are saying is that because of their state police power now, this is just a traditional state function that the federal government is trying to regulate. And so, the history matters because it uncovers, I think, more clearly, the fact that state governments didn't think that this was a traditional state function, and that it wasn't a traditional state function because of the complicated relationship largely through treaties, but also through these other treaty agreements, these treaty substitutes the recognition of the separate nation states that the federal government has developed.

It starts to uncover the fact that that relationship is really what started to cause the broader problem with the policy. So, when you're looking at an anti-commandeering challenge, the question is, is this anti-commandeering or is this preemption? And so, the question is, is it the state power or is it the federal power? And if you look at the history, it is clearly a federal power, and it's state administration of a federal program. We call it the Social Security Act, or we could call it the Social Security program. Well, that's a state power. Well, not exactly. The federal government can giveth and taketh away from state governments quite a bit. It feeds into that question it starts to help answering, "Okay, well, this actually is more about preemption where the Indian Child Welfare Act came in to correct what state governments were doing, because through federal state contracts, they were expanding what they were doing on the ground to administer a federal program." There is, of course-- I'm sorry, go ahead.

Will: One of things you said is that the states-- [unintelligible 00:42:49], you're showing the states didn't think this was a traditional state function. They were refusing to exercise that. So, it's a little rich for them to come in now and say this is our traditional state function you're taking away. Is the idea that the states were right about that, that that they were correct this was not their function, when they were using jurisdiction? Was the idea that they were wrong about that, but their wrongness now has kind of changed the rules?

Maggie: It would be in part that they're right about that, and that the federal government continues to have a government-to-government relationship with Native people. And so, the complicated relationship through state is going to be something that the federal government always has power over. It could regulate it and authorize and confer jurisdiction in all sorts of complicated ways to better move the relationship between state governments and tribal governments forward. But the real question is it a traditional state function, and it's not only the state governments didn't think that it's also that the federal governments didn't think that. And you can see that in the ways that they had extensive federal oversight into these programs, including having federal agents access foster care homes, even contract directly with foster care families in the state, contract directly with public school districts.

So, it's a space where you can see on both sides that the federal government really wanted the state to just assume jurisdiction, and they could see piecemeal efforts to do termination era. "Oh, no, we're going to clarify. The states really have jurisdiction here." But the federal government has pulled back from that and said, "No, that's actually wrong. We're upholding our treaty and trust responsibilities," and that was a mistake. To the extent that we ever argued that, yeah, we understand that was a mistake. And so, you can see both governments coming as a problem in the same way if you look at the history.

Will: Well, I'll be interested to see what happens to this. [chuckles] Do you have a prediction?

Maggie: No. After Castro-Huerta, I'm one of those people where I think if anyone knows my work at all, I'm what people accuse as the law in law movement where I actually think the rule of law matters. I actually think law matters. I think the Constitution matters. And so, I was really hit hard by Castro-Huerta and the court's disregard of its own precedent, disregard of congressional action to the contrary, I understand that there are slight levels of ambiguity. And if you go into sort of a late-stage textualism over all of Congress' statutes, all of them, you could sort of come up with the court's opinion. But I am not impressed at the moment. I'm a little concerned in a way that I don't think I was before. I shouldn't have had the rose-colored glasses on, but I sadly did and I'm having to come to terms with that. So, I'm not going to predict anything with the hope that the court will start to see the error of its ways, hopefully.

Will: We'll see. Okay, that was great.

Maggie: Thank you so much.

Will: Thanks, Maggie. For updates on future episodes, follow us on Twitter @uchicagoconlaw and make sure to subscribe, rate, and comment wherever you get your podcasts. Thank you.

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