Representing Minorities: Federal Indian Law as Paradigm within US Constitutional History

U.S. constitutional history has long taken slavery and Jim Crow as the paradigmatic historical problems to examine question of minorities within democracy. This historical focus has led to an emphasis on rights-based frameworks as the best protection to ensure minority representation, leading to the neglect of structural frameworks.

In this paper, I explore federal Indian law and this Nation’s dark history with colonialism as an alternative paradigm within what legal scholars term public law—the body of laws concerning the government, its powers, and limitations. Currently, to the extent that federal Indian law is discussed at all within public law, it is generally considered sui generis and relegated to a “tiny backwater.” While I concede that the colonial status of Native peoples and the recognition of inherent tribal sovereignty do render aspects of federal Indian law exceptional, federal Indian law and Native history have much to teach about reimagining the constitutional history of the United States. In particular, they instruct that nationalism is no panacea for majority tyranny, and that rights can wound as well as shield minorities. Most importantly, federal Indian law provides a paradigm case of minority representation that only structure and power can solve.

In making this argument, I build on recent work by political theorists and public law scholars, who, building upon the seminal work of Hannah Pitkin, have recently begun to study representative democracy as on par with direct democracy. This literature has begun to lay bare the false dichotomy between structure and rights, and scholars have begun to identify structural forms of representation for minorities from labor law to federalism to petitioning. More than simply rights, these mechanisms provide minorities power as a technique of representation.