Balkinization: Neutral, Careful History and Preserving the Sovereign Tribes

Neutral, Careful History and Preserving the Sovereign Tribes

Guest Blogger

Lorianne Updike Toler

I write briefly in response to Tanner Allread’s thoughtful post reacting to my initial post with two brief points.

First, there is not as much daylight between our views as he suggests: “neutral” history is a historical positivist’s version of “carefulness, thoroughness, and credibility,” which I also applaud and aspire to. I also believe with Allread that good history and neutrality calls for examining one’s own selection bias in identifying issues, levels of abstraction, and sources. Neutrality in this way is aspirational rather than destinational.

Yet the post (and my co-authored, forthcoming article) also views neutrality procedurally. Several safeguards can be put in place to aid in neutrality and, if followed, could be said to be neutral in this sense. The first is involving disparate views in the creation of history. Another for amici and/or special masters is being in support of neither party—both the small and big P versions. A neutral brief could also remain neutral by not coming to legal conclusions. For an example of such procedural neutrality, I held out the amicus briefs recently filed in favor of neither party with the Federal and Second Circuits, not my article relied on by Gorsuch and Thomas in Brackeen (which I thank Allread for recognizing as careful). Law review articles by nature recommend changes in the law, and mine was no exception.

Second, it is important to recognize what Brackeen and Arizona v. Navajo Nation have done this term. As I point out here, Brackeen recognizes all but unlimited Congressional plenary power over tribes. Similarly, Arizona v. Navajo Nation chips away at any structural limits on that power. The problem these cases present should be clear given the hydraulic relationship between federal and tribal governments referenced by Gorsuch in Brackeen: complete plenary power leaves no room for tribal power and therefore sovereignty.

ICWA may well be good for tribes – that I will defer to the tribes and its members like Allread—but I cannot imagine that Brackeen and Navajo Nation’s expansion of Congressional power can be good for them in the long run. It seems to run counter to one of the most seminal Indian Law pronouncements by the Court in Worcester v. Georgia and something Maggie Blackhawk says we should all celebrate in comparative law—the singular recognition by the United States of the sovereignty of native peoples.

Lorianne Updike Toler is Assistant Professor at Northern Illinois University College of Law. You can reach her by e-mail at lautoler@gmail.com.

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