Kate Fort: “The Vanishing Indian Returns: Tribes, Popular Originalism, and the Supreme Court”

Our own Kathryn E. Fort has posted her paper, “The Vanishing Indian Returns: Tribes, Popular Originalism, and the Supreme Court,” on SSRN. It was published in the St. Louis Law Journal.

Here is the abstract:

As the nation faces cultural divides over the meaning of the “Founding,” the Constitution, and who owns these meanings, the Court’s embrace of originalism is one strand that feeds the divide. The Court’s valuing of the original interpretation of the Constitution has reinforced the Founder fetishism also found in popular culture, specifically within the politics of those identified as the Tea Party. As addressed elsewhere, their strict worship of the Founders has historical implications for both women and African Americans, groups both marginalized and viewed as property in the Constitution. No one, however, has written about how the Court’s cobbled historical narrative and their veneration for the Founders have affected American Indian tribes. Tribes  barely exist in the Constitution, and the Founders’ “original” understanding of tribes was that they would inevitably disappear.

The “vanishing Indian” stereotype, promulgated in the early Republic, and reaching an apex in the 1820’s, continues to influence fundamentally how the Court views tribes. Compressing history from the Founding through the  Jacksonian era undermines tribal authority and sovereignty within the Court. In its federal Indian law cases, the Court relies on racial stereotypes and popular conceptions of American history. As a result of these shortcuts, the Court folds all tribes into one large group, empties the American landscape of tribal  peoples, and forces tribes into a past where they only exist to disappear.

This entry was posted in Author: Matthew L.M. Fletcher, legal history, Scholarship and tagged , , , , , . Bookmark the permalink.

3 Responses to Kate Fort: “The Vanishing Indian Returns: Tribes, Popular Originalism, and the Supreme Court”

  1. John Dossett says:

    My impression is that an originalist view of the Constititon can be beneficial to tribes. The text of the Constitution shows a very strong understanding of Indian tribes as sovereign governments. In Congress, this is an effective argument.

    • ilpc says:

      While an originalist argument may very well be a useful argument in Congress (I honestly don’t know), it does not appear to be in the Supreme Court. The combination of originalism and original public meaning does not appear to engage the Court in a useful way for tribes. If it did, the outcomes since the Rehnquist court ought to be much stronger.

  2. Pingback: Kate Fort: “The Vanishing Indian Returns: Tribes, Popular Originalism, and the Supreme Court” | Turtle Talk | Round House Talk

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