Excerpted From: Chantelle van Wiltenburg, The Center Cannot Hold”: Nation and Narration in American Indian Law, 47 American Indian Law Review 127 (2022-2023) (240 Footnotes) (Full Document)


chantellvanwiltenbergIndigenous nations figure in America's constitutional blind spot. This blindness is a willful one. The so-called “Indian problem” has vexed America's mythology since the country's inception, dampening the narrative of democracy's “big bang.” The Constitution is conspicuously silent on Indigenous nations' relationship to “We the People,” leaving this problem unspoken and unsolved. Through omission, America's constitution charts a course for writing Indigenous peoples out of the country's history.

But erasure, it turns out, is not a simple enterprise. Despite Indigenous peoples' faint constitutional footprint--or, perhaps, because of it--their subsistence has long demanded the judiciary's attention. Courts have become sites of narrative contest and conquest, as judges struggle to negotiate the uneasy relationship between states, the federal government, and Indigenous nations. Across decisions, Indigenous peoples are chimeric: their characterizations range from “fierce savages” to wards of the federal government; from “domestic dependent nations” to “distinct political societ[ies].” The judicial gaze is unable to settle centrally on the Indigenous subject, who flits in and out of focus between and within decisions.

Like the Indigenous subject, America's “intricate web of judicially made Indian law” is fraught with contradictions. It has been described by judges and scholars as “anomalous,” “complex,” “confus[ing],” “manipulative,” “murky,” “at odds with itself,” and “schizophrenic.” But the challenging nature of American Indian law is no license to dismiss it as incoherent. Explaining federal Indian law away as sui generis relegates the doctrine into a “tiny backwater” that, like its people, abides at the margins of America's constitutional consciousness.

American Indian law should be brought to the foreground. As Maggie Blackhawk urges, American Indian law can teach us broader public law “lessons about how to distribute and limit government power.” This Article develops another lesson for inclusion in Blackhawk's public law curriculum: a unit on literature. American Indian law is a powerful illustration of the potency of narrative and rhetoric in judicial decision-making. A judge's turn of phrase dictates outcomes: from elevating a treaty to a “promise,” to recasting sovereignty as delegated authority. Rhetoric can reduce Indigenous peoples to a racist caricature in the mythology of America's founding; it can also restore their status as sovereign entities that command respect. These rhetorical choices, in turn, map onto a broader cultural project: plotting the narrative of America as a nation.

This Article embarks on a reading of American Indian law as literature. This Article intends to show how the doctrine's unsteady, extra-constitutional foundations rest on constructivist narratives complete with plot, trope, and character. Within these stories, Indigenous peoples serve as the object--but rarely the subject--of judicial decision. This case study in literary analysis reveals broader truths about our public law system: namely, the power of rhetoric in dictating outcomes; the instrumentality of narratives in both legitimating and dismantling colonialism; and the central role of stories in constituting and re-constituting the identity of “We the People.”

This Article proceeds in four parts. Part one canvasses some influential theories in the law and literature field. Part two charts the narratives of domination and resistance that play out in the “Marshall Trilogy,” the three founding cases of American Indian law doctrine. Part three examines the instability of judicial rhetoric in United States v. Lara (2004). Part four considers narratives of redemption in McGirt v. Oklahoma (2020).

If America has been nursing a blind spot, these pages offer both a diagnosis and prescription. American Indian law represents a pathology of the legal imagination. This doctrine is not comprised of statutes, but stories. Through devices of character and rhetoric, judges have deployed narratives to justify the dispossession of Indigenous lands and to shore up the identity of the American people. But these stories, which rely upon a misremembering of history, have left the law unstable. Across cases and time, the pliant narratives that comprise American Indian law have been handily bent and broken. The original sin of Indigenous erasure continues to destabilize this doctrine today. This is an attempt to look America's history in the eye.

[. . .]

American Indian law is a puzzle that we will never solve. But this is no license to admit defeat. Its challenging nature does not stem from its sui generis character, but from its remarkable ordinariness; it is yet another illustration of the nihilistic threat that lurks at the heart of constitutional interpretation.

The indeterminacy of constitutional law has been likened to a swamp in which we are destined to stay “for tomorrow and tomorrow.” If we indeed are in a swamp, American Indian law surely lies at the deepest part of it, but the wisdom of White, Cover, Bhabha, and Bobbitt “stand as signposts on the way out of the swamp to those who might have consigned their tomorrows to an existence there.” As one writer puts it:

They point the way to firm ground, not by promising yet another “escape from [the] inconclusiveness” of constitutional law--whose promise has sent so many, not out of the swamp, but merely into another part of it--but by showing us that the study of constitutional law is the study of ourselves.

American Indian law, like constitutional law more broadly, is an institutional exercise in perpetual self-construction. These doctrines represent “traditions of writing that have attempted to construct narratives of the imaginary nation-people.” This is an imperfect project; as Bhabha observes, the author's positionality means that their narratives can never be objective. For too long, Indigenous peoples have been denied not only the status of protagonist, but also the role of author in writing this continent's history. But the project of creating constitutional meaning is an ongoing one. Narratives allow us to shed straitjackets of the past for “imagined alternative [s].” They allow us to ask, “What are we to-day”?

For all that has happened since the Marshall Trilogy--for all the times that the character of the nation has been made and remade--those three stories serve as a remarkable prediction of this ongoing contest for meaning. Though these cases cannot be reconciled in the traditional sense, they continue to be renegotiated over time. Law is nothing more than narratives and counter-narratives, which “continually evoke and erase [the] totalizing boundaries” of the nation. Our rhetoric constitutes our identity, and, as Lara warns us, this rhetoric is unstable. American Indian law is a national discourse located in “the space of liminality, in the ‘unbearable ordeal of the collapse of certainty.”’ In the words of W.B. Yeats, “the centre cannot hold.”

But perhaps this is cause for hope, rather than fear. Decisions such as McGirt may signal a new path forward. By rooting his rhetoric in ethos, Justice Gorsuch crafts a narrative that confronts pathologies of the legal imagination and envisions a new national identity. This ethos grounds the narrative in a way that empty metaphors cannot. As Bobbitt notes, “[I]t is the ability to overrule precedent that enables the Court to achieve this expression of values.” Bobbitt likens ethical arguments to a novel, which “can inform and lead into new places the flow of our sympathetic consciousness, and can lead our sympathy away in recoil from things that are dead.” As McGirt shows us, narrative gives ethos its form.

At its heart, American Indian law is a doctrine of stories. The only way to make sense of these narratives is to continue to tell them. Each of us participates in the discursive process of interpreting the collective memory of the nation. As Margret Atwood once wrote, you don't look back along these stories, “but down through [them], like water. Sometimes this comes to the surface, sometimes that .... Nothing goes away.”

LL.M. (Yale Law School, 2022), J.D. with Honours (University of Toronto, 2018). Chantelle van Wiltenburg is a lawyer at Hunter Litigation Chambers in Vancouver, Canada.