Below is the abstract for “On Power & the Law: McGirt v. Oklahoma,” available for download on SSRN.
This Essay aims to translate federal Indian law and the success of McGirt in order to demonstrate the broad purchase of these lessons for understanding the relationship between power and law, as well as for theories of legal change more generally. The body of law called federal Indian law is often considered sui generis and banished to a “tiny backwater” because of the counterintuitive nature of the doctrine. Federal Indian law is often viewed as counterintuitive because it does not comport with the general principles of public law. McGirt could be considered yet another instance of its “exceptional” nature. But what if the field only appears counterintuitive because it successfully wields law in defiance of a contrary world view? Perhaps the most valuable lessons of federal Indian law rest in unthinkable moments like McGirt, when the unthinkable becomes not just thought but is affirmed as the law of the land.
These unthinkable moments demonstrate that, rather than treating federal Indian law as sui generis, perhaps it is our presumptions about how public law operates that need to change. For example, social movement theory, like most theories of popular constitutionalism, has been crafted in the shadow of its paradigm case—that is, the civil rights movement that marched on Washington, transfixing the public eye and changing the public mind. In generalizing from this specific case, these theories suggest that advocates must first change the dominant world view to affect enduring legal change. But what if, rather than aiming at the public mind, marginalized groups focused their advocacy strategies on changing the law through formal lawmaking institutions without ever tackling the dominant ideology? What if they exercised their power not to change the broader culture, but to govern their corner of the world? Indian Country has long leveraged law to gain power. Power in this instance is neither voice, nor simply exit. Native advocates use law to carve out jurisdiction and to govern—changing their own daily lives, rather than reforming a recalcitrant nation state. A doctrine that may at first appear as “incoherent” may instead offer an example of a different approach to legal change—and an inarguably successful example, at that. Instead of being “schizophrenic,” as Justice Thomas has labeled the doctrine of federal Indian law, it could provide examples of marginalized groups fighting against dominant power structures—unus multorum rather than sui generis—only, in this case, the marginalized group succeeds in reforming the law without first confronting the dominant ideology.
With sovereignty as its heart and colonialism as its spine, the body of law that governs the relationship between Native nations and the United States known as “federal Indian law” provides legal scholars a case study in a generations-old power movement. The history of Indian Country advocacy teaches that scholars of social and racial justice ought to broaden theorization beyond their paradigm cases to incorporate the social movement strategy, history, and doctrine of Native nations. Rather than “reasoning from race” as did many other social movements of the twentieth century, Native people have charted their own path toward what Native political theorist Vine Deloria considered a “power movement,” as distinct from the rights movements that ultimately shaped the race doctrines. Within this power movement, Native advocates have taken an approach distinct from movements organized around rights. This approach has allowed Native people to leverage the law in order to remedy historical injustice and subordination directly, rather than hope for antisubordination as a result of formal equality and integration. Such antisubordination measures have included the ability to form their own governments and the creation and management of industries that supply social services to members, including health insurance, free electricity, Head Start education, and elder care. These antisubordination measures have even made their way into federal and state governments, including the preferential hiring of Native peoples to staff the portions of the federal government that regulate Indian Country, and preferential placement of Native children within Native families when resolving their custody within the adoption and foster care systems. McGirt, thus, can be understood to vindicate the doctrines shaped by Native advocates.
Federal Indian law generally and McGirt in particular reveal the need to broaden the particular cases from which theories of regulation and legal change are formulated. In particular, they teach that these theories would benefit from the inclusion of the strategies and histories of Native power movements and drawing from these movements a deeper understanding of the social dynamics of power. Federal Indian law demonstrates how law can be harnessed for social change within the context of these power dynamics. Finally, in closing, this Essay offers some advice for Indian Country following McGirt. In particular, it aims to remind advocates to embrace the “unthinkable” nature of federal Indian law and to recognize that its power lies in its ability to change the world before changing minds.