W. Tanner Allread 

On June 15, Indian Country breathed a collective sigh of relief when the Supreme Court upheld the constitutionality of the Indian Child Welfare Act in Haaland v. Brackeen.  But as tribal leaders and advocates celebrated the majority opinion, legal scholars quickly turned to dissecting the opinions, their use of history, and their adherence to originalism.  On this blog, Professor Lorianne Updike Toler critiqued all of the Brackeen opinions for their selective use of history and called for the presentation of “neutral” history to courts as a solution.  However, Updike Toler makes her own misstep in her post: she implies that her own history is neutral, reproducing the same selection bias for which she critiques the Justices.  And in Indian Law, labeling your historical account as the neutral one that courts should follow can have far-reaching consequences. 

For sure, historians always strive to be neutral in their work, in the sense of seeking truth with integrity and not allowing personal biases to infect their analyses.  However, the search for neutrality—or more commonly referred to as “objectivity”—in history has haunted the historical profession since its inception in the nineteenth century.  That’s because each individual history can never be truly objective: it requires interpretation and source selection, relies on skewed and incomplete archival materials, and cannot be truly divorced from the political and social contexts in which it is written. 

Thus, rather than using “neutrality” as an indicator of good history, historians use factors such as credibility, thoroughness, and care.  The quality of history mostly relies on the evidence used, scholars’ transparency regarding sources and their limitations, and persuasiveness based on interpretations and context.  To the extent that any historical account could be called “neutral,” that characterization would arise from these factors.  And crucially, “neutrality” is a label that only has value when others apply it to your work, not when you claim it for yourself.

While championing “neutrality,” Updike Toler actually recognizes its elusiveness in her post.  The “neutral” historical amicus briefs she envisions require “carefully selecting the issues to be briefed and at the right level of generality.”  But how does one select and abstract the historical issues without imposing some kind of judgment? 

Updike Toler’s call for the separation of historical and legal conclusions in the “neutral” briefs implicates the exercise of judgment even more.  The separation of historical and legal conclusions—while good in theory—is hard to do in practice.  In our current era of history-driven jurisprudence, courts heavily rely on historical sources and narrative to reach legal conclusions.  Historians who engage with the court know this.  So even as historians do their best to marshal the most thorough and credible history, they cannot separate the history they present to courts from the legal issues, and possible legal conclusions, implicated in cases.  This is not simply a problem of ideological bias in historical work; it is the effect of a high-stakes legal system that defines certain historical sources or narratives relevant to the resolution of legal issues. 

Updike Toler would likely agree that she engaged in historical research and writing because that endeavor would have legal relevance.  In The Missing Indian Affairs Clause, she argues that her historical conclusion—that members of the Constitutional Convention intentionally chose not to include an Indian Affairs Clause—necessarily leads to a legal conclusion—that Congress does not have plenary power over tribes.  This legal conclusion leads to other legal conclusions.  According to Updike Toler, if the Brackeen Court had only relied on “neutral history” (i.e., her historical account), it could have reached the “correct” legal outcome: that plenary power in Indian affairs does not exist and thus ICWA exceeds Congress’ power. 

But is Updike Toler’s work as “neutral,” and therefore as objective and authoritative, as she implies?  Updike Toler’s article was not the first to recognize that the Constitutional Convention omitted an Indian Affairs Clause in the Constitution, though she presents an especially in-depth account of how such a clause was proposed, inadvertently overlooked, and ultimately omitted.  But what this history means is hardly self-evident.  Updike Toler largely omits the historical context around the Constitutional Convention that other Indian Law scholars—notably Robert Clinton and Greg Ablavsky—have emphasized.  According to these scholars, debates over the federal government’s authority in Indian affairs could not be divorced from the intense conflicts taking place between the federal and state governments over relations with Indian tribes under the Articles of Confederation.  They demonstrate that even though the Convention omitted the Indian Affairs Clause, the delegates—seeking to quell their Indian affairs problems—lodged such authority in the federal government through a combination of the Indian Commerce Clause, Treaty Clause, and War and Peace Powers.  Also, in the end, the lack of an Indian Affairs Clause in the Constitution mattered very little, a conclusion confirmed by the past two and a half centuries of colonization, violence, and assimilation inflicted on Native peoples by the federal government. 

The meaning of this history, in other words, is not self-evident.  Like so much in history, it requires interpretation—weighing conflicting evidence and reaching conclusions based on historical context.  We should hesitate to accept the “neutrality” of accounts that fail to recognize the role of interpretation or that neglect the evidence that other historical interpreters have amassed. 

Even more consequential are the dangerous legal conclusions that can result from a self-proclaimed “neutral” history, insulated from competing interpretations.  In this instance, those competing interpretations draw on careful study of plenary power, as developed and applied in the Indian Law context.  In the doctrine, the concept of plenary power has come to stand in for two distinct propositions: 1) the federal government’s exclusive authority over relations with Indian tribes to the exclusion of states, and 2) the federal government’s complete authority over Indian tribes and people.  However, the use of one term to describe different legal principles has led to confusion, and Updike Toler has projected this confusion onto the reading of her sources.  For even as Updike Toler argues that the omission of the Indian Affairs Clause means that the federal government lacks complete authority, she does not address the fact that the Constitution may still provide the federal government with exclusive authority vis-à-vis the states. 

In this instance, the stakes of inaccurate historical interpretation are high, underscoring how risky it is to claim that any single interpretation is “neutral.”  Updike Toler argues that since the federal government lacks complete authority over Native peoples, the enactment of ICWA exceeded Congress’ powers and is unconstitutional.  But this misunderstands the purpose of ICWA.  ICWA is not the exercise of federal control over Native peoples; it is an exercise of federal power over states and U.S. citizens for the benefit of tribes and Native peoples.  The statute directs what state courts, state agencies, and private parties must do in child welfare cases involving an Indian child, not what tribes must do.  As the Brackeen Court held, ICWA is constitutional because of plenary power in the first sense—the federal government’s exclusive authority over Indian affairs.  And it is this power of the federal government to exclude as well as direct states and non-Indians when it comes to relations with tribes that has a long and well-established pedigree: it was the understanding embodied in the Constitution in the wake of the Articles, advocated for by Native peoples (as Greg Ablavsky and I have traced), and affirmed in the foundational Indian law case of Worcester v. Georgia. 

Additionally, if a historian is going to offer a legal conclusion to courts based on their work, they should recognize both how that conclusion fits with other aspects of history that are relevant to the legal issue and the harms it may cause.  As Matthew Fletcher and Wenona Singel have shown, the taking of Native children in the twentieth century was led by states.  By taking ICWA away, what would stop states from once again interfering with tribal sovereignty and Native families?  Rather than being a panacea for the recognition and flourishing of tribal sovereignty, the elimination of the federal government’s exclusive authority in Indian affairs would take away the one tool that keeps states in check—federal power—allowing states to freely encroach on tribal sovereignty.  In practice, such a result would align with Justice Thomas’s argument that tribal sovereignty no longer exists, a conclusion with which Updike Toler would disagree (slip opinion at 32). 

This is why ICWA is so popular in Indian Country.  After decades of the destruction of tribal land-bases, Native culture, and Native families, the federal government used its authority against the states and its citizens, rather than over tribes, to protect the integrity of tribal nations.  And it did so explicitly because of this tragic history.  Moreover, ICWA’s status as a pro-tribal sovereignty statute meant that 497 tribes came to its defense when it was challenged.  Yet, Updike Toler dismisses the wishes of tribes even as she calls for invalidating the statute in the name of tribal sovereignty. 

Ultimately, it seems that Updike Toler is wrestling with the colonial conundrum that Indian Law scholars and Native peoples have had to contend with for centuries.  As an Indian Law scholar and tribal citizen, I am sympathetic to the argument that the federal government does not possess power over tribes and that the exercise of tribal sovereignty should be unfettered.  But, I also recognize that because of the United States’ colonial history, tribal nations must interact with, and sometimes rely on, the federal government in order to exercise that sovereignty.  As Justice Gorsuch captures in his concurrence, the “Indian-law bargain struck in our Constitution” can recognize both principles: the sovereignty of tribal nations and the exclusive authority granted to the federal government to protect that sovereignty (slip opinion at 12).  And thankfully, as many Indian law scholars, historians, and tribal advocates have shown, it is the weight of considerable historical evidence and carefully researched and written history, not the self-proclaimed neutrality of its interpreters, that secures “for the Tribes a place—an enduring place—in the structure of American life” (slip opinion at 38). 

W. Tanner Allread is a Ph.D. in History candidate at Stanford University, holds a J.D. from Stanford Law School, and is a citizen of the Choctaw Nation of Oklahoma.  You can reach him by email at tallread@stanford.edu.