Daniel B. Rice (University of North Carolina School of Law) has posted Indian Law and the Problem of Historical Rupture (Alabama Civil Rights & Civil Liberties Law Review, forthcoming) on SSRN. Here is the abstract:
Why has federal Indian law become so disconnected from Founding-era understandings? This symposium essay offers a geopolitical explanation for Indian law’s aggressive modernism. Ever since the United States cemented its military superiority over Native peoples, interpretive fealty has become a distant dream, largely surrendering to frameworks that enable full control over co-located sovereigns. Indian law’s lack of a serious “history and tradition” constituency is best explained by a perceived need to maintain the existing balance of power—one that has long helped stabilize the American constitutional order. The essay conceptualizes these fateful choices as an instance of modern values trumping the apparent commands of history.
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