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FEDERAL INDIAN LAW AS PARADIGM WITHIN PUBLIC LAW

Blackhawk, Maggie

Harvard law review, 2019-05, Vol.132 (7), p.1787-1877 [Periódico revisado por pares]

Cambridge: Harvard Law Review Association

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  • Título:
    FEDERAL INDIAN LAW AS PARADIGM WITHIN PUBLIC LAW
  • Autor: Blackhawk, Maggie
  • Assuntos: African Americans ; American colonialism ; Analysis ; Atrocities ; Central government ; CHILDREN ; Civil rights ; COLONIALISM ; Constitutional amendments ; Constitutional history ; Constitutional interpretation ; CONSTITUTIONAL LAW ; Conversation ; Despotism ; Emergency powers ; Evaluation ; Federal government ; Federal tribal law ; Founding ; General public ; Historiography ; History ; Imperialism ; Indigenous peoples ; Influence ; Interpretation and construction ; JUDICIAL REVIEW ; Land ; Laws, regulations and rules ; Minority groups ; Nationalism ; Paradigm case ; Paradigms ; Political aspects ; PUBLIC LAW ; Racism ; Reforms ; Resting ; Segregation ; Separation of powers ; SLAVERY ; Social aspects ; Sovereignty ; State power ; Supreme Court decisions ; Treaties ; U.S. states ; War
  • É parte de: Harvard law review, 2019-05, Vol.132 (7), p.1787-1877
  • Notas: HARVARD LAW REVIEW, Vol. 132, No. 7, May 2019, 1787-1877
    HARVARD LAW REVIEW, Vol. 132, No. 7, May 2019: 1787-1877
    2019-05-29T13:05:10+10:00
    AGIS_c.jpg
    Informit, Melbourne (Vic)
  • Descrição: U.S. public law has long taken slavery and Jim Crow segregation as a paradigm case through which to understand our constitutional law: cases adjudicating issues of slavery and segregation form the keystones of our constitutional canon. Reconstruction, or the so-called “Second Founding,” and the Civil Rights Era periodize our constitutional histories. Slavery and Jim Crow segregation supply normative lessons about the strengths and failings of our constitutional framework. This paradigm teaches that if there is too much power in the states and not enough limitation on state power in the form of national power or rights, America might again reenact similar atrocities. Although there is much to learn from the United States’ tragic history with slavery and Jim Crow segregation, resting our public law on this binary paradigm has led to incomplete models and theories. This Nation’s tragic history of colonialism and violent dispossession of Native lands, resources, culture, and even children offers different, yet equally important, lessons about our constitutional framework. In this Article, I argue for a more inclusive paradigm that reaches beyond the black/white binary, and I highlight the centrality of federal Indian law and this Nation’s tragic history with colonialism to public law. Currently, to the extent that federal Indian law is discussed at all within public law, it is generally considered sui generis and consigned to a “tiny backwater.” While I concede that the colonial status of Native peoples and the recognition of inherent tribal sovereignty do render aspects of federal Indian law exceptional, federal Indian law and Native history have much to teach about reimagining the constitutional history of the United States. Interactions between the national government and Native Nations have shaped the warp and woof of our constitutional law from the Founding across a range of substantive areas, including vertical and horizontal separation of powers, the Treaty Clause, war powers, executive powers in times of exigency, and many others. I aim to open a conversation as to whether these doctrines ought to take their rightful place in the canon or, perhaps, the anticanon. Beyond simple canonization, federal Indian law offers paradigmatic lessons about the strengths and failings of our constitutional framework. Broadening the binary paradigm to include federal Indian law could allow interventions into a range of general principles of public law. It has often been said that federal Indian law is “incoherent” and in need of reform, because the doctrine does not comport with general public law principles. But perhaps it is the general principles of public law, and the incomplete paradigm of slavery and Jim Crow segregation on which those principles rest, that are in need of reform. More than simple canonization, the inclusion of federal Indian law as an additional paradigm case could lead to fundamental reformulation. A full catalogue is beyond the scope of this Article, but I offer an example here in the hope that it will invite more. As I’ll show, federal Indian law leads public law to a very different set of principles in the context of minority protection, unsettling reigning theories of how best to distribute and limit power in order to prevent government abuse of minorities. Unlike slavery and Jim Crow segregation, federal Indian law teaches that nationalism is no panacea for majority tyranny, and that rights can wound as well as shield minorities.
  • Editor: Cambridge: Harvard Law Review Association
  • Idioma: Inglês
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