Legislative Constitutionalism and Federal Indian Law
abstract. 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. This “juricentric” or court-centered constitutionalism has relegated the other, so-called political branches to a second-class status with respect to the Constitution. Not only has the dominance of the Court dampened our constitutional culture writ large, it has also occluded the ways that Congress and the executive branch play distinctive and vital roles within constitutional lawmaking.
As we finally tamp out the last few embers of hope that the Supreme Court can alone sustain, preserve, and protect a robust constitutional culture within the United States, I offer here another world now in existence that could provide strategies and visions for a less juricentric future writ large—that is, the case study of federal Indian law and of American colonialism, and the Native advocacy that gave birth to this body of law.
The core theoretical contribution of the case study is that recognizing legislative constitutionalism as a legitimate and co-equal form of constitutionalism could support a distinctive and thus more varied constitutional culture than that offered by our current juricentric system. Scholars have long celebrated the unique form of participation in the lawmaking process offered to the public by the institutional structure of Congress and have highlighted the ways that Congress has fostered constitutional deliberation with “the people themselves.” The case study of federal Indian law supports these earlier celebrations and allows us to build on them by also recognizing Congress’s ability to offer distinctive constitutional reforms. As a legislature, Congress can engage with constitutional lawmaking as statecraft—an approach wholly absent from the courts. In the context of American colonialism, Congress has offered constitutional reforms in terms of “structure”—that is, the institutions of the U.S. government and their design; implementation and alteration of the structural aspects of the constitutional order; the contours of its federalist framework; and the distribution of power—including to subordinated communities—as an insufficient and imperfect, but innovative form of constitutional lawmaking.
For scholars of federal Indian law, recognizing the longstanding relationship between Congress and Native advocates as constitutionalism fosters a deeper understanding of the constitutional developments within the law over time—developments that place the philosophies and agency of Native people and Native Nations at the center of our constitutional law and history. Beyond reperiodization of our Native legal and constitutional histories, exploring legislative constitutionalism within the field of federal Indian law provides us with an illustration of Congress taking a central role in the identification and mitigation of constitutional failure—an illustration that illuminates the problems and promise of legislative constitutionalism.
For reformers hungry to push back on the monopolization of power by the Supreme Court, the case study of federal Indian law offers an example of marginalized advocates successfully reining in the Court using little more than persistence and ingenuity. Importantly, this case study demonstrates that stripping power from the Court may not dampen our constitutional culture or leave it to the whims of populist passion, even in the context of constitutional failure and even as applied to subordinated populations. Rather, Congress has and can play a more central role in our constitutional lawmaking on par with the Court, if we the people finally embrace and support its ability to do so.
author. (Fond du Lac Band of Lake Superior Ojibwe) Professor of Law, NYU School of Law. Discussions about this project began before a pandemic altered our national landscape and a leaked opinion changed our national discussion about the Supreme Court. Interest in constitutionalism outside the courts has gained momentum ever since and I have connected with many fellow travelers along the way; for their fellowship, brilliant insights, and sharp critique I owe a great debt to Laurie Benton, Richard Briffault, Daniel Carpenter, Josh Chafetz, Ryan Doerfler, Bill Eskridge, John Ferejohn, Abbe Gluck, Jonathan Gould, Vicki Jackson, Eisha Jain, Lewis Kornhauser, Genevieve Lakier, Sophia Lee, Lawrence Lessig, Bird Loomis, John Manning, Jonathan Masur, Martha Minow, Sam Moyn, Rick Pildes, Eric Posner, Robert Post, Daphna Renan, Bertrall Ross, Reva Siegel, Steven Smith, Robin West, and James Whitman, as well as participants of the Culp Junior Scholars of Color Colloquium, AALS Legislation & Law of the Political Process annual panel, Legislation Roundtable, Congress & History Conference, Yale Legal History Forum, University of Chicago Public Law Seminar, Harvard Law School Public Law Workshop, Berkeley Law Public Law and Policy Workshop, Richmond Law Faculty Colloquy, and the NYU Colloquium on Law, Economics, and Politics. Ned Blackhawk, gizaagi’in. For thorough and thoughtful research assistance, I am grateful to Tom Cassaro, Justin Cole, Ashlee Fox, Olivia Guarna, Meghanlata Gupta, Andrew Hamilton, Erica Liu, and Helen Malley. For their patient attention to detail, as well as high-level thoughts and feedback, my thanks to Charles Jetty, Eric Eisner, and the editorial team at the Yale Law Journal.
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 States2
[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. Lara3
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 “juricentric” 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 Court18 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 short-lived 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 between states and Native Nations today through collaborative lawmaking frameworks like the Indian Gaming Regulatory Act and by ratifying and enforcing agreements between states and Native Nations.24
Second, Congress has affirmed and structured the recognition of inherent tribal sovereignty and it continues to structure and facilitate the ongoing government-to-government relationship between the United States and the 574 federally recognized Native Nations.25 Today, Native Nations govern hundreds of thousands of tribal members and land masses larger than several states—all as semi-sovereign enclave states enclosed within the alleged territorial borders of the United States.26 Through a series of self-determination statutes, beginning in the 1930s and continuing in the 1970s, Congress has also recognized the ability of Native Nations to administrate federal regulatory schemes, receive federal funds to administer federal welfare programs, contract with federal, state, and local governments, and assume control of hospitals, schools, and other infrastructure within Indian Country previously run by the national government.27
Finally, Congress has reshaped the structure of the federal government across all three branches and the separation of powers between these branches to facilitate better representation of Native Nations and Native people. In addition to establishing specialized committees within its own chambers,28 Congress has also most notably reshaped the face of the American state and placed Native peoples at the helm of that state. Today, Native Nations are governed by a specialized branch of the executive, the Bureau of Indian Affairs (BIA).29 As of 2010, because of hiring preferences established by Congress beginning in the 1930s, ninety-five percent of employees within the BIA were citizens of Native Nations.30 Excluded from the promise of birthright citizenship in the Fourteenth Amendment, Congress created a complex form of citizenship for Native people by statute in the 1920s—a form of citizenship that allowed Native people to retain allegiance to their Native Nations and serve as the first dual-nationals recognized by the United States.31 Finally, Congress has usurped, reshaped, and translated the treaty and recognition powers, among others, to maintain fidelity to the Founding visions of inherent tribal sovereignty and to mitigate the American colonial project.32 The lessons of Native movements, struggles, and successes in establishing these fundamental changes are myriad. But they offer guidance toward developing a constitutional culture that embraces the distinctive roles of the other branches and decenters the courts.
Centering federal Indian law within a study of constitutionalism offers a range of theoretical implications. This Feature explores two. First, Congress has a particular role in the making and interpretation of constitutional law. This lesson is not new; public-law scholars have long explored Congress’s central role in constitutional lawmaking—what some scholars have termed “legislative constitutionalism”33 and others “departmentalism.”34 But this Feature aims to build on these literatures by studying Congress’s role in mitigating the constitutional failure of American colonialism. Because federal Indian law rests in the context of judicial abnegation or the absence of judicial review, this body of laws and their histories provide insights into what Congress may uniquely offer the constitutional lawmaking process—that is, what is particularly legislative about legislative constitutionalism.35 When the now-dominant tide of the Court pulls back, it reveals the unique strengths and weaknesses of centering the development of constitutional meaning, values, and law within a legislature, rather than through a court, a President, or an interbranch conflict.36
This Feature posits that it is not coincidental that Native advocates focused their efforts on Congress. It was the lawmaking institution most open to claims and debates about American colonialism and most able to offer the structural constitutional reforms needed to mitigate it. Much of the vitality of Congress’s role is rooted in the unique form of participation in the lawmaking process offered to the public by the institutional structure of Congress—more directly through the lower chamber of the House and more indirectly through the upper chamber of the Senate—through channels like the electoral process and through petitioning or lobbying.37 Because it has facilitated and supported practices of empowered engagement and discourse since the Founding, Congress has long functioned as a central site of intersection between “the people themselves,” social movements, and the formal and informal shaping of constitutional law, values, and meaning.38 Beyond unique forms of participation, Congress also offers distinctive constitutional reforms and thus fosters deliberation in constitutional registers distinct from the courts. Rather than packaging claims in terms of positive or negative rights and liberties,39 Native advocates have been able to directly address constitutional failures of representation, faulty structures of government, and the distribution of power.40 Most central to the mitigation of American colonialism, Congress offers Native advocates the promise of constitutional reforms in terms of “structure”—that is, the institutions of the U.S. government and their design; implementation and alteration of the structural aspects of the constitutional order; the contours of its federalist framework; and the distribution of power—including to subordinated communities—as an insufficient and imperfect but innovative form of constitutional lawmaking.
A second theoretical implication arises from the fact that federal Indian law offers legislative constitutionalism a clear example of Congress interpreting the U.S. Constitution directly. In contrast to quasi-constitutionalism, federal Indian law reveals areas of constitutionalism where Congress interprets and constructs big “C” constitutional law.41 This is not to say that a legislative constitutionalism informed by federal Indian law has no role for the courts. Rather, in these domains, courts should be seen as collaborators within the constitutional lawmaking process—a “policentric constitutionalism” among multiple constitutional lawmakers42—and judges should be aware of their vital but secondary role in making constitutional law in conversation with Congress. Within federal Indian law, the courts have played this role by developing a range of judicial tools to engage in the constitutional lawmaking process alongside Congress, but without recognition of the constitutional implications. These include clear-statement rules,43 canons of construction for treaties and statutes,44 and the rational-basis review of congressional plenary power over Indian affairs.45 Scholars and the courts have readily debated the ambiguous status and origins of these tools. Understanding them as small “c” constitutional lawmaking in certain contexts could allow legal scholars, as well as courts, to reconcile clear-statement rules, interpretive canons, and deferential review of plenary power as constitutional law—but constitutional law that defers to the authority of Congress as Congress interprets and implements the Constitution directly.
This Feature proceeds in four parts. Part I explores legislative constitutionalism in the context of a particular case: federal Indian law—the intricate, exceptional, and deeply flawed body of laws that regulate aspects of the American colonial project. In doing so, it offers a reperiodization of Native legal history through the lens of Native advocacy and Native constitutional and political thought. Parts II and III explore the theoretical implications of this case study. Part II offers ways to better center the institution of the legislature by examining the longue durée history of Congress and the distinctive forms of participation and redress it offers in the context of constitutional lawmaking. Part III offers ways to theorize Congress as an embedded and discursive institution—not a branch at war with the courts—by envisioning the Supreme Court’s role, in particular domains, as a creator of little “c” constitutional law to support big “C” constitutional interpretation in Congress. This Part also situates federal Indian law within other areas of substantive constitutional law over which Congress wields supremacy today—either through judicial abnegation or the Court’s declination of judicial review—to identify similar dynamics of policentric constitutionalism across substantive areas. Finally, Part IV closes with an exploration of the ways that our current constitutional moment could draw on these implications to craft a more dynamic and robust constitutional culture. Most importantly, this Part closes with a recommendation that reformers focus, too, on empowering Congress and defining a positive role for the courts within that dynamic system, in addition to considering restrictions and checks on the Supreme Court’s current juricentric constitutional project.