Excerpted From: Maggie Blackhawk, Foreword: The Constitution of American Colonialism, 137 Harvard Law Review 1 (November, 2023) (985 Footnotes) (Full Document)

MaggieBlackHawk.jpegThe United States holds hundreds of governments in subordination. Not historically. Today. It dominates these governments and their peoples, exploits their resources, prohibits political independence, withholds representation, and imposes its own laws, values, and norms upon these governments without consent. Mere decades ago, the United States forcefully sterilized citizens of these nations and removed a quarter or more of Native children from their families. At the same time, the Supreme Court stripped these governments of the ability to police crimes in their own communities, unleashing widespread sexual violence and leaving more than one in three Native women vulnerable to rape. Just over a hundred years ago, the United States invaded these nations and held them under decades of martial law before unilaterally appointing civil governments. It ran detention camps on the lands of these governments and forced their children into boarding schools that promised to “[k]ill the Indian in [them], and save the man.” Federal agents beat Native children in such schools for speaking Native languages, held them in unsanitary conditions, and forced them into manual and dangerous forms of labor. Thousands died. Federal law also criminalized political and spiritual practices and outlawed traditional marriage and family structures. In the last two hundred years, the United States has engaged in campaigns of mass execution and slaughter against citizens of these governments to a level that many have called genocide.

But we do not consider these problems to be problems of constitutionalism. We do not invoke this history when considering questions of good governance, citizenship, representation, the ideal design of our governing institutions, or the best distribution of power across the national government and within “our federalism.” Constitutional scholars rarely discuss the problem of American colonialism at all. We lack the very language to confront these problems in a constitutional register. Our common parlance of rights, equality, and integration fails us. Our antisubordination discourse runs out. The limits of our constitutional language are seemingly the limits of our world.

Instead, we call the component parts of American colonialism sui generis. We banish each to its silo. The United States did not engage in a structured and mass campaign to remove, detain, assimilate, and destroy these governments and their peoples in the name of “civilization.” Rather, we have federal Indian law; the law of the territories; foreign relations law; treaty law; the war powers; and the laws of naturalization, immigration, and citizenship. We have the puzzle of Puerto Rico, the fascinating but marginalized question of Native nations, and the forgotten history and ongoing struggles of the state of Hawai'i. All of these puzzles are seen as so illogical and alien as to withstand theorization, defy understanding, and refuse any common logic. Rather than engage with questions born of American colonialism, we have instead declared these puzzles as beyond our constitutional theory and left them to the “plenary power” of the political branches to solve.

Yet, these colonized nations and peoples have lived on and continue to shape the government, the Constitution, and the empire we live with today.

I begin this Foreword with the observation that a body of law within the United States comprises the constitutional law of American colonialism. Conventional wisdom generally draws a distinction between constitutionalism and empire. A constitution is presumed to serve as the fundamental law of a nation. It is established to set and maintain borders. But it primarily focuses inward on a federalist, but unitary, legal and constitutional culture that aspires to equality, justice, republicanism, and liberal values. In this view, colonialism is constitutionalism's opposite. Empire is outward-facing and focused not on a nation, but on expansion and conquest. It governs not through consent, but through force. Rather than create a unitary constitutional culture, colonialism fosters legal variation and constitutional pluralism.

The distinctions between the United States Constitution and colonialism have been overstated. Like many constitutions of empire during the eighteenth and nineteenth centuries, the United States Constitution had two faces: one for the colonizing polity and the other for the colonized. The United States Constitution with which we are most familiar would govern the colonizing polity. But the Constitution would also provide the national government with the power to govern others, “Indians,” in spaces of liberal constitutional exception. In these spaces, the national government built a constitution of empire: a vast and intricate web of relationships between the central government and those it colonized. Within this outward-facing or “external” constitution, American colonialism has thrived--like the tentacles of an octopus, it constructed colonies and the jurisdictions they inhabit as the borderlands of the United States.

These borderlands are simultaneously familiar and foreign to the constitutional framework, subject to its power often without its protections. They are domains and peoples over which the United States has extended its jurisdiction unilaterally, often unlawfully and violently, on the grounds that the peoples within those borderlands require civilization before they achieve self-government. Paradoxically, borderlands are spaces of both subordination and empowerment. They are areas where “universal” rules of liberal constitutionalism apply selectively or not at all to “savages.” But they are also spaces of legal and constitutional pluralism that allow colonized peoples some powers to govern and innovate. Borderlands are where permanent “strangers” to the United States Constitution and their worldviews remain, denaturalizing the seemingly stable borders of empires and nations.

We have yet to reckon with the constitution of American colonialism as an aspect of our constitutional law. No doubt there have been benefits to this oversight. Treating the law of American colonialism as fractured and siloed has increased the power of small but well-organized colonized groups within the borderlands to reclaim and reshape the principles, laws, and institutions of American colonialism to their benefit. Lack of visibility has allowed them to work in the shadows, avoiding the backlash and retrenchment seen in areas of race, gender, and LGBTQIA+ constitutional reform. This invisibility would likely be lost if the national public finally began to reckon with American colonialism. Avoiding constitutional framing has also allowed Native advocates and their allies to craft limits to American colonialism that defy the logic of United States constitutional law writ large--these limits sound in terms of constitutional structure, rather than rights, and avoid the failures of juricentric constitutionalism seen elsewhere by empowering Congress to tackle the constitutional problems of American colonialism.

The consequences of not reckoning with American colonialism include burdens as well. Most relevant for this Foreword, not recognizing the law of American colonialism as constitutional law means that limits on American colonialism may be vulnerable to challenges couched in well-established constitutional discourses, values, and doctrines. Unless we recognize colonialism as a distinctive struggle of fundamental practices, norms, and institutions within our society and recognize discourses around power, self-determination, sovereignty, jurisdiction, and community as a distinctive form of constitutional discourse, we leave the strategies that mitigate the American colonial project at risk of constitutional challenge. We face the deeply ironic situation that the constitutional values we initially elevated to reckon with other constitutional failures--especially the institution of human enslavement and Jim Crow segregation be used to further the colonial project today.

The Supreme Court put this dynamic in sharp relief this last Term when it upheld in Haaland v. Brackeen a law that purported to respond to the forced separation of Native children from their families and communities. Congress passed the law in 1978 after hearings and investigations revealed that state governments had removed approximately 100,000 Native children in the 1950s and 1960s. The law, the Indian Child Welfare Act of 1978 (ICWA), purported to end this policy by setting substantive standards for state courts when removing Native children from their families, including a preference to place these children with Native citizens and communities and a requirement that state governments attempt to keep Native families together. The law also sought to empower tribal governments by strengthening tribal jurisdiction over family law, family court capacity, and child welfare programs.

The Supreme Court upheld the statute. But it did so by declining to reach the thorniest constitutional challenge to ICWA and through a ringing affirmance of the “plenary power doctrine,” which gives Congress “plenary power” over Native peoples. Equal protection challenges to federal Indian law were thus left for another day--keeping alive the threat that “an entire Title of the United States Code (25 U.S.C. [Indians]) would be effectively erased.” The result in Brackeen is thus a moment for celebration. But it is also a lesson in how far our elite institutions have yet to go before they might reckon with American colonialism.

This distance was revealed by Brackeen itself--both in the opinion and the course of the litigation. The sole reference to the mitigation of American colonialism as a constitutional value came from Justice Kavanaugh. He struggled in oral argument to articulate the problem in constitutional terms: “So, on the one hand, [this Court considers] the great respect for tribal self-government for the success of Indian tribes with--and Indian peoples with recognition of the history of oppression and discrimination against tribes and people.” Justice Kavanaugh then turned to his vision of the constitutional value on the other side, against which we should balance the value of mitigating American colonialism. His description, in many ways, revealed his preference:

On the other hand, [this Court considers] the fundamental principle we don't treat people differently on account of their race or ethnicity or ancestry, equal justice under law, I don't think we would ever allow, as the Court suggested in Palmore in 1984, Congress to say that white parents should get a preference for white children in adoption or that Latino parents should get a preference for Latino children in adoption proceedings. I don't think that would be permitted under that principle of equal justice that we recognized in Palmore.

In its only indirect reference, the mitigation of American colonialism was narrowed to a “respect for tribal self-government” and an amorphous history of “oppression and discrimination,” while the “fundamental principle” of “equal justice under law” included the broader principle that “we don't treat people differently” on account of race and a specific, recognized doctrinal application in Palmore v. Sidoti. Justice Kavanaugh wrote separately in Brackeen to double down on his concerns over “bedrock equal protection principles”-- omitting entirely any mention of colonialism.

Brackeen presents an example of the Supreme Court tussling with the mitigation of American colonialism as a constitutional value. It acts as a cautionary prelude to the difficulties presented by future equal protection challenges. In Brackeen, the Court was asked to resolve the constitutional status of a law that was crafted specifically to mitigate paradigmatic dynamics of American colonialism. These dynamics were stark--in the years immediately predating the drafting and passage of the statute, state governments removed twenty-five to thirty-five percent of the next generation of Native nations. To scholars of empire, the removal of children from a colonized nation and forced resocialization of those children in the language, norms, and customs of the colonizing nation are easily recognizable as tools of colonization. Colonized nations cease to exist when stripped of their citizens. Because the United States purports to limit the ability of Native nations to draw new membership from beyond those who are descended from political communities historically recognized by the United States, taking descendant children away finally solves the “Indian Problem.”

Rather than identifying the preservation of colonized communities as a constitutional value, the well-established constitutional discourse around “equal justice,” crafted in the aftermath of human enslavement and Jim Crow segregation, drove the legal arguments of advocates and, in turn, framed the issues before the Court. Advocates defending the constitutional status of ICWA assumed a defensive crouch, arguing against constitutional relevance. They argued instead that Native children were uniquely not part of racialized communities, that removal was not rooted in racism, and that federal “plenary” power was, on average, beneficial to Native nations. As an author of one of these briefs, I am free to admit the lie. As I have written elsewhere, “racial hierarchies formed whatever heart imperialism has” and “national power was no panacea for the subordination of Native peoples.” But, again, what other option are we left with when the United States does not seem able to even admit its status as empire, much less reckon with it as a problem of constitutional order?

Our founding myth is that we are a “nation of immigrants,” a myth that erases the original, Indigenous inhabitants of North America and those communities brought to these lands in chains--a myth that conceals the countless foreign nations, lands, and peoples over which the United States asserted its power to govern and dispossess, without consent or negotiation and often by force. It is difficult, if not foolish, to attempt to understand American history and the development of the United States without placing the constitution of American colonialism at the center of our constitutional theorization. Constitution, in this sense, takes on at least two meanings. On one hand, colonialism--or the unilateral expansion of jurisdiction over lands and peoples--was itself constituted or built through infrastructure, action, and law. On the other, the American colonial project was founded upon and continues to operate according to a range of highly contested but increasingly consistent fundamental principles. These are principles distinct from those governing the metropole and often inflected with racialized hierarchy as justification for dispossession, exploitation, and elimination. But these are also principles that have been tempered through contestation with borderlands peoples over the last two hundred years. Yet, because we have been unable to face the problematic and racialized doctrines that form the foundations of the constitution of American colonialism, we have abandoned colonialism to the plenary power of the political branches and even theorized it as being beyond the reach of liberal constitutionalism entirely.

Recognizing the external constitution and the American colonial project it has fostered could help us understand that the so-called “plenary power doctrine” is not constitutional law, but the absence of constitutional discourse. Instead, reliance on the plenary power of the political branches obscures the constitutional law, principles, and values of American colonialism that continue to shape our colonial relationships today, without addressing difficult questions of justification. It is an effort to fill the void left by the racialized hierarchy that many used to justify American colonialism and shield us from the difficult constitutional conversations that remain across the seemingly disparate, but ultimately connected “external” constitutional fields of federal Indian law, immigration, the law of the territories, foreign relations law, the treaty power, and the powers of war and exigency. Scholars have long drawn the plenary power doctrine as the common thread weaving together these fields but have puzzled over what we should make of the connection. I argue that the key is American colonialism--a constitution that we have yet to understand and explore.

Recognition of this external constitution and the colonial project within it could offer the means to move toward resolution of American colonialism. It could secure past efforts to mitigate the damage of colonialism through quotidian lawmaking and bring much-needed stability to these statutes. Federal Indian law is not alone in facing challenges. Similar constitutional challenges have been raised against the law of the territories, even this Term, calling into question the “plenary power” of the national government to regulate these other colonized peoples.

Instead, scholars and jurists should address the constitutional questions presented by American colonialism head on. They should provide distinctive constitutional solutions. Many of these bottom-up constitutional conversations are already underway in the borderlands. Borderlands constitutionalism initially borrowed heavily from the vocabulary of the law of nations-- discourses of power, disempowerment, sovereignty, self-determination, development, citizenship, and nationhood. These discourses preserved several principles, including recognition of colonized peoples as political entities, preservation of those communities, support for self-determination, respect for the borders and jurisdiction of colonized peoples, collaborative lawmaking, and principles of nonintervention, that weigh against the imposition of the laws of one people upon another. Borderlands peoples then began translating these principles into the liberal constitutional discourse of the center--most notably, by advocating for self-government and limits on the unilateral imposition of law without collaboration and consent, as well as respect for diverse legal structures and constitutional pluralism.

Because colonized communities have long engaged in their own constitutional discourse, many modern laws of American colonialism reflect the constitutional culture or vernacular constitutionalism of colonized peoples and their advocacy over the past two hundred years--statutes like the Indian Child Welfare Act. Colonized peoples persuaded the political branches to codify their constitutional philosophies into law. Rather than simply limiting or overruling the plenary power doctrine and leaving these constitutional principles unmoored, we should recognize their contribution to our constitutional discourse. Borderlands voices provide a foundation for the constitutional conversation that will replace the plenary power doctrine in the future.

This Foreword proceeds in three Parts. The first Part begins to draw the contours of the constitution of American colonialism, starting a conversation about the metes and bounds of a new field and bringing together seemingly disparate threads of law. The second Part offers a rediscovery of our modern borderlands and explores their role in shaping our external constitution and the American colonial project embedded within it, including the vital constitutional limits secured on the American colonial project over time. Part III explores the increasing conflicts between American colonialism and the United States Constitution--most recently and most notably, in the cases of Brackeen, United States v. Vaello Madero, and Oklahoma v. Castro-Huerta. It then turns to what could be gained from reckoning with the constitution of American colonialism. The ability to better mitigate American colonialism, I argue, as well as a broader vision of constitutionalism--one that presses beyond the erroneous limit between internal and external constitutionalism toward questions over community formation, expansion, and consent that rest within our constitutional borderlands--would be the result of such a long overdue reckoning.

This Foreword offers a long overdue reckoning with American colonialism. The horizons of our constitutional law and theory have been limited in many ways by the American colonial project. Liberal constitutionalism was born in the context of colonialism and continues to reflect those theoretical limitations by failing to offer principles, values, and limits on our relationship to “others,” especially others whom we have colonized. Most notably, colonialism has left its imprint on constitutional law in the often stark and false dichotomy between “internal” constitutional law--a domain where the rules of liberal constitutionalism apply to civilized insiders--and “external” or “foreign affairs”--where liberal constitutionalism is allegedly suspended. A proper reckoning with colonialism will require recognition of this external constitutional framework and the American colonial project it embodies. It will require recognition of the lack of principles and theories for our “external” constitution and will require deep deliberation over the proper principles, limits, and values that operate within that constitutional framework-- principles that, I offer, should begin with borderlands voices and borderlands constitutionalism.

In many ways, reckoning with American colonialism will offer more questions than answers. Once we place the constitution of American colonialism at the center, for example, what then do we make of a constitutional theory that presumes constitutional uniformity and presumes “We the People” as a static category? Beyond already thorny questions of how best to constitute a domestic government and to ensure political equality, liberty, and democracy within that polity, whom do we include in that constitutional community and on what terms? How do we define the reach and limit of our power over others? How do we rectify the exercise of power over colonized peoples? How do we rectify the constitutional exceptionalism and hierarchy of constitutionalism applied to racialized, gendered, and other subordinated peoples, deemed unable to self-govern? The United States has been shaped fundamentally by community after community fighting for inclusion in the polity after being wrongfully declared “uncivilized” and “unassimilable.” Distinct from the question of reparations, how do we incorporate and give voice as a constitutional matter to those members subjected to a distinctive and exceptional constitutionalism--subject to its power without any of its protections? That is, how do we affirmatively engage with the constitutional questions that we may have lost to the erasure of American colonialism? These questions may not have easy answers. But let us ask them.

(Fond du Lac Band of Lake Superior Ojibwe) Professor of Law, New York University.