Balkinization: Brackeen’s Missteps & The Need for Neutral History

Brackeen’s Missteps & The Need for Neutral History

Guest Blogger

Lorianne Updike Toler

The Supreme Court announced its decision in Haaland v. Brackeen on Thursday, which upheld the constitutionality of the Indian Child Welfare Act. ICWA, among other things, allows tribes to intervene in state adoptions of tribal children. The decision illustrates that the Court’s turn to history is indeed selective.

Despite Justice Gorsuch’s assertion that “[i]ncreasingly, [the Court] has emphasized original meaning in constitutional interpretation,” (Gorsuch concurrence, slip opinion p. 35), the majority opinion, authored by Justice Barrett, relies almost entirely on precedent to uphold Congress’ plenary power over tribes (see slip opinion at 11, 13). Gorsuch and Thomas alone excavated history in their concurrence and dissent, respectively (although Justices Sotomayor and Jackson joined Gorsuch’s concurrence, they did not join section II, which explored how framing history bore on Congressional plenary power over tribes).

This perhaps because the parties did not provide a theory the Court could “work with” in upending plenary power and instead defer to tribal sovereignty. (slip opinion at 17). As Justice Barrett has detailed elsewhere, as she sees it, framing history cannot be relied upon unless following precedent would be unlawful.

Yet a theory solidly grounded in history is available, and in spades. As I detail here (and as relied upon by Justices Gorsuch and Thomas in their opinions (see slip opinion for Gorsuch at 34 & 36 and Thomas at 9)), the Constitutional Convention intentionally chose not to include an Indian Affairs Clause as it was found in the Articles of Confederation. Instead, they included some form of the Article of Confederation’s Indian Trade Clause by expanding the Commerce Clause. Without an Indian Affairs Clause, the Constitution does not provide Congress with plenary power over tribes, but instead allows interaction and regulation through the Indian Commerce Clause, Treaty Clause, and War and Peace Powers, among other enumerated powers.

Once Congress stopped treating with tribes in 1871, as Justice Gorsuch puts it, the Court made a “doctrinal misstep” in U.S. v. Kagama (1885) (slip opinion at 31). There, the Court upheld the Indian Major Crimes Act on the basis of a free-floating Congressional plenary power, later attached to the Indian Commerce Clause.

If the Brackeen Court had embraced this history, it perhaps would have provided sufficient justification to correct this doctrinal misstep and recognize that Congress does not have plenary power over tribes and must instead once again recognize their sovereignty by treating with them. This would mean that if the tribes did indeed want something like ICWA, they could agree to it by treaty either collectively as a Tribal Congress or tribe by tribe.

Such an outcome might have been possible had this history been presented by the parties or perhaps by a special counsel or master. Historical amici are frequently the most read and used among all amicus briefs submitted to the Court, yet while special masters have been used in certain cases, the Court has never appointed a special historical master. However, this infrequently used tool in the Court’s kit could address the problems presented by the historical record that is frequently ill-suited (or ill-used) by the adversarial system, it being designed to present compelling arguments rather than identify reliable history. It might also address the problems presented when different judges interpret history disparately, as Justices Gorsuch and Thomas did with the history presented in my article.

Appointment of special counsel was suggested by at least one judge in admittedly tongue-and-cheek fashion. Yet in a post-Bruen world, perhaps appointment of special counsel is a method of accounting for the lack of judge’s historical training and the limit on resources to engage in the time-consuming work of historical excavation.

Yet another federal district judge called for historical amici, particularly by junior lawyers, whom he would allow to argue their brief. If more judges opt for this route, perhaps these orders could be culled in one place online such that constitutional historians could easily service this need.

Regardless of whether parties, amici, or the Court in appointing counsel or masters dives deeply into history, it is imperative that the history presented be neutral. Such would increase the credibility of that history, potentially helping it to constrain and cabin judicial discretion. It would also give a fair hearing to all sources bearing on the case. Such history would reveal historical gaps, discrepancies, or unworkable puzzles, rather than only presenting sources favoring one party or the other’s self-interested aims.

Neutral history may sound like an oxymoron. Indeed, the historical amici filed in federal courts at both the appellate and Supreme levels tend to be overtly partisan. Historians’ briefs tend to be overwhelmingly liberal, while originalist’s briefs (with notable exceptions) tend to be overwhelmingly conservative.

Yet neutral history is possible. As proof of concept, my students and I, with the help of my colleague Larry Stein at Northern Illinois University filed two neutral historical amici in the Federal Circuit and Second Circuit. These launched a new genre of historical amicus briefs that were truly friends of the court. Not only were they filed in favor of neither party, they were also non-partisan in the larger sense.

Several safeguards can help ensure historical neutrality. One is to ensure that those writing the brief come from diverse ideological backgrounds. The amicus my students and I filed in a transgender sports case recently heard before an en banc panel of the Second Circuit, Soule v. CT Schools, was co-drafted by NIU’s Gender-Sexualities Alliance president, a transgender student, and the Christian Legal Society president.

Other safeguards we employed included following where history leads, carefully selecting the issues to be briefed and at the right level of generality, and my promise to make full grade deductions for non-neutral briefs (a sure-fire way to get students’ attention!).

Perhaps the most important safeguard in drafting these briefs was limiting ourselves to making historical conclusions only. This rather than making legal conclusions, which we left up to the judges. This last safeguard is perhaps the most effective means of ensuring neutrality and would help to overcome concerns that historians rather than judges should say what the law is.

As I advocate in a forthcoming article co-authored by Robert Capodilupo, constitutional history clinics could also be established at law schools to provide neutral historical amici, supplying judges with reliable history. Some schools have already made inroads here. Outside of my constitutional history seminar at NIU, Notre Dame has begun training students in doing constitutional history, and Akhil Amar at Yale is seeking to obtain credit for students assisting him, Vikram Amar and Steve Calabresi in filing historical amici.

In addition to increasing the credibility of the history and therefore its usability by the Court, the process of producing neutral history has a positive collateral impact: by engaging with those across the aisle both procedurally and substantively, it will increase civility and understanding, both sorely needed traits in today’s fractured legal landscape.

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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