Legislative Constitutionalism and Federal Indian Law.

• Author: Blackhawk, Maggie

FEATURE CONTENTS INTRODUCTION 2208 1. CASE STUDY: FEDERAL INDIAN LAW AND LEGISLATIVE CONSTITUTIONALISM 2217 A. Native Agency and Making of the United States Constitution, 1783-89 2220 B. Diplomatic Constitutionalism, 1789-1827, as Precursor to the Era of U.S. Constitutional Failure, 1828-1934 2226 C. Reviving the Native Constitution, 1934-Present 2236 1. Translating Constitutional Powers 2239 2. Checking the Executive 2246 3. Reshaping Representation 2249 4. Structuring Federalism 2254 II. IMPLICATIONS: CENTERING THE "LEGISLATIVE" IN LEGISLATIVE CONSTITUTIONALISM 2258 A. Constitutional Conversations in Congress 2258 B. Structural Constitutional Reforms 2266 III. IMPLICATIONS: THE ROLE OF THE COURTS IN LEGISLATIVE CONSTITUTIONALISM 2272 A. Congressional Supremacy in Federal Indian Law 2274 B. Congressional Supremacy Amidst Juricentric Constitutionalism 2281 1. Congressional Override and Juricentric Constitutionalism 2282 2. Juricentric Constitutional Challenges 2288 IV. "SECOND-WAVE" LEGISLATIVE CONSTITUTIONALISM 2293 A. Reforming Congress 2296 B. Federal Indian Law 2298 CONCLUSION 2300 It is impossible to conceive a doctrine more opposed to the constitution of our choice, than that a decision as to the constitutionality of all legislative acts rests solely with the Judiciary Department; it is removing the cornerstone on which our federal compact rests; it is taking from the people the ultimate sovereignty, and conferring it on agents appointed for specified purposes.... --Albany Register (1799) (1) Congress may not legislatively supersede our decisions interpreting and applying the Constitution. --Dickerson v. United States (2) [Our earlier cases], then, are not determinative because Congress has enacted a new statute, relaxing restrictions on the bounds of inherent tribal authority that the United States recognizes. And that fact makes all the difference. --United States v. Lara (3) INTRODUCTION

The United States has reached a moment in its constitutional history when the Supreme Court has asserted itself as not only one of, but the exclusive, audience to ask and answer questions of constitutional meaning and constitutional law. In decision after decision, the Court has declared the federal judiciary as the primary forum and itself the primary arbiter of constitutional conflict and debate. (4) The Court has asserted its methods--text, history, tradition--as the preeminent modes of constitutionalism. (5) The Court has also established the superiority of its substantive vision of constitutional law and values. (6) This "juri-centric" constitutionalism has relegated the other, so-called political branches to a second-class status with respect to the Constitution. (7) Not only has the dominance of the Court dampened our constitutional culture writ large, but it has also occluded the ways that Congress and the executive branch, as unique institutions, play distinctive and vital roles within constitutional lawmaking. This Feature explores what lessons public-law scholars might draw from federal Indian law in building an alternative constitutional culture to our current--and deeply flawed--juricentric system.

The United States arrived at this constitutional moment in part due to accretion. As Congress fell into dysfunction and increasingly stalled, the Supreme Court stepped into the breach. (8) But it has also arrived at this moment because of a belief that our constitutional order requires aggressive and exclusive judicial review by the Supreme Court. (9) Without the "least dangerous" (10) branch, who would enforce the limits set by the Constitution? Many of our current government leaders came of age steeped in Alexander M. Bickel, John Hart Ely, and debates over the countermajoritarian difficulty. (11) Our current Supreme Court, educated almost entirely at Harvard's and Yale's law schools, are students of these men, if not their theories. (12) The lessons of the Warren Court and the civil-rights revolution seemingly taught us that courts were the sanctuaries of subordinated minorities and that constitutional failures, like that of slavery and Jim Crow segregation, could be resolved by calling forth the power and empathy of the Supreme Court. (13)

So, what is to be done once scholars and the public lose the taken-for-granted belief that aggressive judicial review is necessary or even beneficial for our constitutional framework? How does one navigate a Supreme Court that is hostile to fundamental constitutional values, especially in the context of minority protection, rather than serving as the best-suited "pronouncer and guardian of such values"? (14)

This Feature offers some preliminary answers to these questions through the lens of Native people and their advocacy strategies, histories, constitutional philosophies, and the legal frameworks that govern them. The body of law that governs the relationship between Native peoples, Native Nations, and the United States--termed federal Indian law--offers a unique perspective on the distinctive roles of the other branches in making and interpreting constitutional law. (15) Of course, the success of Native advocates in shaping the United States constitutional system should not be overstated, nor should it be washed of the blood of generations of Native men, women, and children required to secure even the most tenuous constitutional change. But this Feature begins to explore the ways that the resilience of Native advocates, their innovative strategies, and the legal frameworks borne of those strategies offer lessons for our current constitutional moment.

However imperfect, the framework of federal Indian law has fundamentally reshaped the constitutional structure of the United States, often forming the only backstop against the seemingly endless American colonial project. Most of these fundamental constitutional changes have taken place without the involvement of the federal courts. Through petitioning, lobbying, diplomacy, and even military standoffs, Native advocates have built and rebuilt the modern framework of federal Indian law--a framework that recognizes tribal sovereignty and supports self-determination and collaborative lawmaking. (16) Federal Indian law has thus reshaped the face of U.S. government from Congress to the American state, as well as its federalist and constitutional framework.

Most important for our current constitutional moment, many of these constitutional changes have taken root in the face of open hostility by the Supreme Court. In contrast to generalist scholars of public law, scholars of federal Indian law have long understood Native people to be the proverbial Indigenous "canary" in the coal mine of American democracy. As Felix Cohen famously stated, "Like the miner's canary, the Indian marks the shifts from fresh air to poison gas in our political atmosphere; and our treatment of Indians, even more than our treatment of other minorities, reflects the rise and fall in our democratic faith." (17) With respect to the Supreme Court, Native people have been the canary in an often-hostile coal mine. Most notably, Native people did not experience the legal gains before the Warren Court (18) seen by other marginalized groups during the tenure of Justice Thurgood Marshall. (19) The primary protections by the courts came during the tenure of a much earlier Marshall, Chief Justice John Marshall. (20) But these gains were over one hundred and fifty years prior and were so shortlived as to not prevent the bloodshed of removal, including the Trail of Tears only a handful of years after Chief Justice Marshall's decision in Worcester v. Georgia. (21) Exploring the constitutional development of federal Indian law offers insights into alternative ways of understanding the function of judicial review and of the place of Congress and the Executive in helping to interpret, make, and enforce constitutional law. As this Feature aims to show, in the context of federal Indian law, the formation of the doctrine occurred often through conflict with Congress and through the constant activism of Native peoples.

Congress has been at the heart of these constitutional reforms in three primary areas. First, Congress has restructured the federalist framework to affirm national power as central to Indian affairs and has cemented the boundaries between Native Nations and the several states. During the very first Congress, Congress passed the first of a series of Trade and Intercourse Acts that affirmed federal power over Indian Country and limited state power. (22) Congress later reinforced the separation of state jurisdiction from Indian Country within each state's enabling act. (23) Congress continues to structure the relationship...