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/

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 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;

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.

#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/

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.. 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.

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. 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.

Clarification: "subconstitutional frameworks" does not mean that Native nations are like states. I've written fervently to the contrary! Native advocacy forced the US to recognize Native sovereignty and make law collaboratively by treaty. Native people shaped the US Constitution.

https://twitter.com/MaggieBlackhawk/status/1541412962245775360

We can presume that Native people didn't intend these results, but why strip Native people of political agency? There is wonderful recent Native history offering these tactics as intentional (incl. by the Haudenosaunee): academic.oup.com/jah/article-ab…

This case is about Native children. But, at its base, it is an effort to destroy the few laws that mitigate American colonization of Native peoples. It is a battle between using power to solve the constitutional failure of colonialism or protecting only rights—however harmful.

https://twitter.com/mjs_DC/status/1498304849833861126

It is a battle for the soul of American democracy. Are we a colonial power that subordinates and offers rights as, at best, mere paper tigers, and at, at worst, as tools to further the colonial project? Or will we finally do more to mitigate our constitutional failures?

In response to my critique of biased reporting by @adamliptak, some have called for “more expertise” @nytimes. Indian law is often very difficult. This is not one of those times. Here is brief intro to McGirt& the shamelessly political Bosse petition: 1/ nytimes.com/2021/08/16/us/… In July of 2020, the Supreme Court held in McGirt v. Oklahoma that Congress had *not* acted to abrogate the treaty that set reservation boundaries. The Court reached this holding after deliberating for *two full terms* and after reviewing 100 years of congressional action. 2/

The @nytimes has published numerous articles biased against Natives. But this @adamliptak piece is so one-sided that, with all due respect, it reads like a puff piece for Oklahoma (whose attorneys Adam knows personally). Let’s start with the title: 1/ nytimes.com/2021/08/16/us/… Unlike Adam's article on the state of Miss. challenge to Roe v. Wade (another challenge that leverages the Court’s new composition) Adam calls OK challenge “bold” (courageous, not baldly political) and calls McGirt “at risk” rather than calling the petition "frivolous" 2/