Delve into the rich intersection of Native American history and Supreme Court rulings. Discover the evolution of plenary power from the 1880s to legal recognition today. Explore key cases like McGirt and Oliphant, and the ongoing struggle for tribal sovereignty. Learn about contrasting judicial philosophies and their impact on Indigenous rights. Unearth the philosophical teachings of the Anishinaabe and their relevance in today's legal landscape. Gain insights into recent successes in governance and education that are reshaping perspectives on Native rights.
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Quick takeaways
The podcast explores the evolution of plenary power in U.S. law, highlighting tensions between Native sovereignty and federal authority through landmark cases.
Contrasting interpretations of textualism, such as Muskrat and Canary textualism, reflect broader ideological conflicts in the Supreme Court regarding Native rights.
Anishinaabe teachings promote a philosophy of governance based on communal responsibility, offering a critical perspective on existing legal frameworks.
Deep dives
The Plenary Power Doctrine
Plenary power is a federal doctrine that gives the U.S. government extensive authority over Native American tribes, largely rooted in historical racism and stereotypes. Initially articulated in the late 19th century, this doctrine has evolved as different Supreme Court cases have interpreted its authority. Significant cases like US v. Kagama in 1886 and later US v. Laura in 2004 highlight how the understanding of plenary power has transitioned from lacking constitutional backing to being justified under the Commerce Clause. This shift reveals underlying tensions in the framework of U.S. law regarding Native sovereignty and rights.
Textualism in Native American Jurisprudence
The podcast examines contrasting interpretations of textualism as applied to Native American law, differentiating between what is termed 'Muskrat textualism' and 'Canary textualism.' Muskrat textualism, represented by Justice Gorsuch, emphasizes a rigorous textual analysis and respects the powers of tribal nations, exemplified by the McGirt case. In contrast, Canary textualism, associated with Justice Scalia, often diminished Native authority by prioritizing pragmatic over originalist considerations, as seen in cases like Oliphant. This clash reflects broader ideological battles within the Supreme Court concerning the rights and recognition of Native peoples.
Historical Context and Evolving Court Perspectives
The historical context of the Supreme Court's rulings on Native American cases exposes a pendulum swing in federal policy from extermination and assimilation to self-determination and acknowledgment of tribal governance. The Allotment Era aimed to dismantle tribal identity, while subsequent policies in the mid-20th century sought to distance the federal government from Indigenous affairs. During more recent years, the Court has increasingly recognized the inherent rights and authority of tribes to govern themselves. These developments highlight the importance of understanding Indigenous perspectives to foster more equitable legal interpretations.
Consent and Constitutional Obligations
The discussion promotes a re-evaluation of the relationship between Native American tribes and the U.S. government, anchored in the principle of consent. Acknowledging consent as necessary for legitimate authority addresses the problematic nature of plenary power. Furthermore, the obligation of the U.S. government to tribes should align with constitutional principles, particularly through treaty powers. Emphasizing these elements aims not only to reshape legal frameworks but also to correct historical injustices by fostering a more just governance relationship.
Cultural Underpinnings and Legal Philosophy
Anishinaabe teachings illustrate a contrasting philosophy of governance and relational accountability compared to individualistic American legal structures. These teachings emphasize values such as knowledge, integrity, and respect for creation, which inform the social and political structures of Native governance. Acknowledging this philosophical difference can shift conversations about legal interpretations, focusing on communal responsibility rather than hierarchical power. Recognizing Indigenous methodologies can enhance contemporary legal discourse, ultimately contributing to a fairer justice system for all.
In celebration of Native American Heritage month, Keith Richotte Jr., author of the forthcoming book, The Worst Trickster Story Ever Told: Native America, the Supreme Court, and the U.S. Constitution and Matthew L.M. Fletcher of the University of Michigan discuss Native American history and law through the stories of landmark Supreme Court cases. Jeffrey Rosen, president and CEO of the National Constitution Center, moderates.
