Clarence Thomas’ critique of my research in an Aboriginal rights case reveals the major flaw in originalism.

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When, ten years ago, I was a graduate student working hard on my thesis, I could not have imagined that Justice Clarence Thomas would one day devote a lengthy footnote in a Supreme Court opinion to explain why my obscure historical research was wrong. But that’s what happened in the recent court decision in Haaland v. Brackeen. By a vote of 72, the court upheld the Indian Child Welfare Act (ICWA), a key federal law that provides procedural protections to indigenous children when their parents are unable to care for them from a long-running campaign launched by right-wing think tanks to overturn it.

Unfortunately, Brackeen does not completely end this campaign against the ICWA, which has been going on longer than I am an academic. The conservative organizations behind the case have already pledged to find new plaintiffs to file the equal protection claims the court avoided based on ongoing litigation that Judge Brett Kavanaughs (alone) guest. But Brackeen is still a hugely important and critical win. The Brackeens and Texas brought a long list of constitutional challenges to the law, and many of them succeeded in the 5th United States Circuit Court of Appeals. But this very conservative Supreme Court flatly and resolutely rejected these claims. It’s a big win.

My involvement in the case stems from my work as a historian of legal relations between the United States and Indigenous nations, what used to be called Indian Affairs. In 2015, while still a student, I wrote an article on the constitutional history of federal authority in this area. In it, I criticized Judge Thomas’s thoughts in his 2013 settlement in Adoptive Couple v. Baby Girl that ICWA exceeded the original understanding of the power of Congress. I wrote this article for a simple reason: after several years of digging through archival documents for another project, I knew that Thomas’s opinion was based on a law review article by Robert Natelson that contained errors. obvious and objective. It seemed important to me to try to set the record straight as best as I could.

Years later, Brackeen ended up partly filming on this historic issue. As Slate traced, the build-up to the case featured the bizarre experience of having Natelson respond to my scientific criticism of his paper by calling me a crook and throwing a total (and, at least in my opinion , surprisingly easily refuted) aggression against me. And in Brackeen, Judge Neil Gorsuch’s lengthy agreement and Thomas’ equally lengthy dissent recapped that kerfuffle (without the ad hominem attacks, thankfully). In a sense, their debate was an originalist battle over the proper interpretation of historical evidence.

I cannot claim to be an unbiased observer here, since Gorsuch relied on my work and the amicus brief as well as the work of other important scholars like Matthew Fletcher, Wenona Singel, Michalyn Steele, Robert Clinton, Christopher Green and a largely written historians amicus memoir. by Maggie Blackhawk to refute Thomas. But that battle left me with two broader thoughts, one about dissenting from Thomas, the other about the Gorsuchs deal.

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First, on Thomas: I don’t need to add the final critique on how originalism is often outcome driven, but I think his dissent offers some interesting reflection on how it works In practice. Originalism rests on the premise that, correctly interpreted, history can sometimes offer objective and correct answers to legal questions. And, although I am at best agnostic about originalism as a constitutional theory, my article, and my work more generally, have attempted to take this premise seriously. I have spent years immersed in the relevant sources and have written extensively on the historical issue in question; I have a professional historical background; and I spoke directly about the kind of legal issues that lawyers often complain about and historians don’t care about.

None of this means I’m necessarily right. What that means is that I did the work. Even for original research like, say, the meaning of business history is not the same as that of law; there is no narrow, neatly classified set of relevant sources. Mastering historic materials requires years of work. And so it’s not exactly comforting to see that over the past few months, Judge Thomas has apparently dispatched his paralegals to do full-text searches and then cut and paste the results. (Perhaps most of the exasperation was Thomas’s multiple citations to sources that I’m 99% sure have surfaced through my research.) The very substantial evidence to the contrary that Gorsuch mentioned simply didn’t exist. If you were to be originalists, you would hope that the decisions radically altering the current law would rest on a more solid basis.

Second, on Gorsuch: His opinion seeks to salvage what I, and others before me, have suggested that might have been something closer to the original constitutional understanding of Indian affairs: that the federal government enjoyed exclusive authority over relations with Indigenous nations (excluding state power) but held limited authority over Indigenous peoples themselves. Unfortunately, the Supreme Court abandoned this conceptual framework at the end of the 19th century. It will be interesting to see if it can be plausibly restored without succumbing to Thomas’ vision, which would eliminate essential federal protections for Indigenous sovereignty.

Gorsuch’s agreement ends, as do many of his federal opinions on Indian law, with a moving statement: Our Constitution provides tribes with an enduring place in the fabric of American life. It’s exciting to see this statement written into US reports. But this truth does not necessarily reflect the wisdom of the so-called Founders. One of the persistent challenges I have faced in my work has been to emphasize the space that the original Constitution reserved[d] for Indigenous sovereignty while acknowledging the reality that many document writers would willingly have exterminated Indigenous peoples, and sometimes sought to do so.

It is less paradoxical than it seems. As I have traced in more recent work with Tanner Allread, Indigenous peoples have been heavily engaged in the Constitution and its drafting. Previously, the federal government had tried, unsuccessfully, to simply assert its authority over Indigenous nations, who had often succeeded in fending off the government’s legal arguments. Thus, the resulting Constitution reflected Indigenous power as much as it reflected the wishes of its framers.

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The same goes for the fight against the ICWA. I had the privilege of using my research to try to help defeat this onslaught. But in the end, this affair, and its stakes, do not concern non-Indigenous scholars like me. The initial passage of the laws owes much to Indigenous activists who drew attention to the number of Indigenous children uprooted from their homes. And it is the judges, officials and advocates of tribal courts who ensure that ICWA is not another broken promise to Indigenous peoples, but meaningful law that is actually enforced. The most important result of Brackeens is giving them the space they need to continue their vital work.

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