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.