Originalism and Indians

Date

2018

Journal Title

Journal ISSN

Volume Title

Publisher

Tulane Law Review

Abstract

Discusses the idea that originalism provides a basis to advance a strong vision of tribal sovereignty and an exceptionally limited federal role in tribal communities. To advance an originalist constitutional theory supportive of meaningful tribal sovereignty, this Article compares the jurisprudence of Justice Thomas and Justice Gorsuch in light of their ample records on originalism and Indian law. In particular, their positions on key administrative law concepts paint a stark picture of their respective originalist philosophies-and they generally hold the same position. Their records on Indian law, however, are drastically different, demonstrating the significant ravines that exist among originalists with regard to originalist theories. Thus, these two Justices, supposedly cut from the same originalist cloth, provide a perfect opportunity to critically examine how originalism can be applied to Indian tribes. This Article proposes a new originalist vision of federal Indian law and tribal sovereignty that fits squarely within the jurisprudence of Justice Gorsuch. In stark contrast, Justice Thomas's record on Indian law reflects an anti-originalist understanding of the Constitution that reaffirms longstanding historical misconceptions of the fundamental precepts of the United States and applies contemporary understandings to constitutional language.

Description

Keywords

Indigenous peoples, Originalism, Administrative law, Federal Indian law, Tribal sovereignty, Congressional plenary power, Justice Neil M. Gorsuch, Justice Clarence Thomas

Citation

93 Tul. L. Rev. 269