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Maggie Blackhawk Profile picture
@MaggieBlackhawk
Jun 29, 2022 • 5 tweets • 2 min read • Read on X
Against hundreds of years of congressional action, against solid #SCOTUS precedent, and hundreds of years of history, the Supreme Court held today that states have jurisdiction over certain crimes in Indian Country by judicial fiat. A devastating result for our democracy. Image
There is little to say here other than the fact that our Supreme Court has become a superlegislature. Precedent, statutes, separation of powers, reason, the rule of law, these things all mean nothing.
So what can we do? Unlike #Dobbs, Congress can undo #SCOTUS without any constitutional difficulty. We can send the Supreme Court a message TODAY that its decision to take over all branches of our government will not succeed. With a single statute, Congress can "fix" this result.
Please take all of this rightful and righteous anger at #SCOTUS and check their power today. Call on Congress to pass a Castro-Huerta "fix." It takes one statute. Please. The message we could send to #SCOTUS checking their power is vitally important to us all.
Hello again, friends, rather than arguing over what to call us, could you please just call your member of Congress? Ask for a “Castro-Huerta fix” to check the power of this runaway Supreme Court. (We can clarify other language later.)

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More from @MaggieBlackhawk

Maggie Blackhawk Profile picture
Jun 6
Fascinating #SCOTUS decision today! A 5-4 opinion, by Chief Justice Roberts(!) held for Native nations under what, at first blush, looks like technical statutory interpretation. But, rich questions over colonialism abound: esp., self-determination and the separation of powers /1 Image
5-4 divides on whether to read the statute as informed by a "self-determination principle" and whether the Congress or executive determines principles inherent in colonialism. Dissenters want decades of executive action to remain, even over Congress's wishes to the contrary. /2
Scholars of administrative law should particularly enjoy the conservative dissenter's heavy reliance on administrative decisionmaking (over Congress!). Consistency? But the most interesting point is in the majority: the Court relies on self-determination in its interpretation. /3
Read 6 tweets
Maggie Blackhawk Profile picture
Oct 10, 2022
Happy #IndigenousPeoplesDay! "Conservative" advocates before the Supreme Court are challenging federal Indian law as unconstitutional. Friendly reminder that #originalism means #landback. It means Native people get Louisiana and everything west. 1/

justsecurity.org/83460/on-indig…
The framing generation never envisioned treaty or territory powers able to incorporate huge new swathes of land and peoples. Only those peoples in the map consented to and ratified the constitution. Want to stretch the US from sea to shining sea? Amend the Constitution. 2/
No amendment? Then #originalism means that we cannot constitutionally hold those lands or peoples as part of the United States. Not just that, but Hawai'i, Alaska, Puerto Rico, American Samoa, &c. All gone. This isn't realistic, you say. 3/
Read 7 tweets
Maggie Blackhawk Profile picture
Aug 23, 2022
Proudest announcement: Ned Blackhawk's The Rediscovery of America: Native Peoples and the Unmaking of U.S. History is coming to book stores March 2023! #twitterstorians

In a transformative synthesis, Blackhawk interweaves five centuries of Native and non-Native histories to show ImageImage
that European colonization in the 1600s was never a predetermined success; that Native nations helped shape England’s crisis of empire; that the first shots of the American Revolution were prompted by Indian affairs in the interior;
that California Indians targeted by federally-funded militias were among the first casualties of the Civil War, that the Union victory forever recalibrated Native communities across the West, and that twentieth-century reservation activists refashioned American law and policy.
Read 6 tweets
Maggie Blackhawk Profile picture
Aug 22, 2022
This brief would not exist, but for work by historians to bring these issues to light: Margaret Jacobs and Karen Tani @kmtani first among them. Amanda White Eagle @AmandaRockman and Julius Chen of @akin_gump brought the brief to fruition. Students, though, were the engine. 1/
Law students at @nyulaw, @YaleLawSch, and @StanfordLaw researched tirelessly for months on this brief, alongside history students from @Yale. We are grateful to them for their brilliance and diligence. We also had the support of faculty, including @johnrebird and @mega_flavor.
For research support, NYU Law librarians Christine Park and Alex Burnett were integral, as were the #twitterstorians here, to whom I've turned on a number of occasions. Thank you for this kind and generous community.
Read 4 tweets
Maggie Blackhawk Profile picture
Aug 22, 2022
#SCOTUS could shake the foundations of Indian law this term in Brackeen, a constitutional challenge to the Indian Child Welfare Act. Honored to file a brief on behalf of @The_OAH and @AHAHistorians. This is the first time either organization has filed in an Indian law case. 1/
Native children have never been the province of the states. ICWA was simply a continuation of 200 years of federal policy over Native children. When the federal government tried to convince states to assume jurisdiction over Native children in the mid-20th c., states refused. 2/
State governments refused jurisdiction over Native families because they were poor and it could not raise revenues from them. Natives were the responsibility of federal and tribal governments, states argued, and they refused to support Native families with state welfare. 3/
Read 9 tweets
Maggie Blackhawk Profile picture
Jun 29, 2022
On a "Castro-Huerta Fix": Please call your member of Congress and ask for a "Castro-Huerta Fix." No bill number yet. Although, there is draft bill language in #SCOTUS dissent. But, don't forget, Congress could go farther: strip jurisdiction, clarify tribal sov. vis-a-vis states.. Image
Importantly, to objections based on the current partisan composition of the Congress: Indian law is not a simple partisan issue and it is hard to predict (just look at the dissent's author!). More, states won't want this unfunded mandate and many already rejected it.
The Supreme Court overrode the wishes of both blue and red states alike. Iowa, for example, just repealed its jurisdiction over crimes by and against Native people on a reservation in its borders. The Supreme Court unilaterally overrode state representatives and their citizens.
Read 4 tweets

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