Textualism’s gaze
Open accessAbstract
This Article attempts to address why textualism distorts the Supreme Court’s jurisprudence in Indian law. I start with describing textualism in federal public law. I focus on textualism as described by Justice Scalia, as well as Scalia’s justification for textualism and discussion about the role of the judiciary in interpreting texts. The Court is often subject to challenges to its legitimacy rooted in its role as legal interpreter that textualism is designed to combat.
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In some cases, the Supreme Court follows the elected branches and upholds tribal sovereignty, while in others it issues opinions that do not treat tribal governments as separate, sovereign entities.
“In some cases, it follows the popularly elected branches and upholds tribal sovereignty while in others, it issues opinions that do not treat tribal governments as separate, sovereign entities”
From Dividing Authority Three Ways: Federal–Tribal–State Relations after<i>Oklahoma v. Castro-Huerta</i> (2023) · cites this paper as Fletcher 2020
In “Declining to Engage with the Text: Tribal Powers Cases,” the paper says Supreme Court precedent generally preserves tribal powers unless Congress or the tribe validly divests them. In the passage labeled “Textualism’s Gaze 133,” it also describes Court opinions calling tribes “quasi-sovereign nations” or denying their sovereignty. These passages support the contrast in the claim, but do not establish that the Court follows the popularly elected branches in some cases. (LLM, conf=0.79)
Experimental — accuracy not yet measuredThe Castro-Huerta decision may leave lower federal courts confused about when to defer to congressional policies and statutes, how to apply the canons of statutory construction, and how to conduct preemption analysis in an Indian law context.
“It may leave lower federal courts confused about when to defer to congressional policies and statutes, how to apply the canons of statutory construction, and how to conduct preemption analysis in an Indian law context”
From Dividing Authority Three Ways: Federal–Tribal–State Relations after<i>Oklahoma v. Castro-Huerta</i> (2023) · cites this paper as Fletcher 2020, 130
In “A. Structural Biases,” the paper describes confusion in lower courts over Indian law; in “Toward a Rule of Interpreting Indian Affairs Texts,” it says courts apply interpretive canons inconsistently. It also discusses preemption disputes, but does not address Castro-Huerta or say that decision may cause confusion about congressional deference, canons, or preemption. (LLM, conf=0.86)
Experimental — accuracy not yet measuredThe Supreme Court has yet to adopt a consistent approach to federal Indian law.
“The Supreme Court, however, has yet to adopt a consistent approach to federal Indian law.”
From Dividing Authority Three Ways: Federal–Tribal–State Relations after<i>Oklahoma v. Castro-Huerta</i> (2023) · cites this paper as Fletcher 2020
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Research works printed but not linked: 1
- U.S.C. § § 5101-5129 (2012)). 131. Kenneth R. Philp, Termination: A Legacy of the Indian New Deal, 14 WESTERN HIST. Q. 165, 170 (1983). 132. The records of the tribal meetings to debate whether to accept the provisions of the 1934 Act are collected in THE INDIAN REORGANIZATION ACT: CONGRESSES AND BILLS (Vine Deloria, Jr. ed., 2002). 133. Id. at 117 (Oregon Indians); id. at 137 (same). 134. Id. at 159 (Navajo). 135. Act of June 26, 1936, ch. 831, 49 Stat. 1967 (codified at 25
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Dividing Authority Three Ways: Federal–Tribal–State Relations after<i>Oklahoma v. Castro-Huerta</i>
Carlson, K. M. (2023) · Publius: The Journal of Federalism · doi:10.1093/publius/pjad020 · Cited by 1 · see citing works
- Authors
- Fletcher, M.
- Affiliations
- University of Michigan (US)
- Corresponding author
- Fletcher, Matthew
- ORCID
- Fletcher, Matthew
- Venue
- Michigan Journal of Race & Law
- Publisher
- University of Michigan Law Library
- Published
- 2020
- Issue
- 25.2
- Pages
- 111
- ISSN
- 1095-2721 (ISSN-L)
- 2688-5492
- OpenAlex
- W3004107908
- Cited by
- 1
- References
- 0
- Citations by year
- 2023: 1
- FWCI
- 1.64
- Type
- journal article
- Language
- en
- Open access
- diamond
- doi.org
- Locations
- Michigan Journal of Race & Law (publishedVersion)
- eYLS (Yale Law School) (submittedVersion)
- SSRN Electronic Journal (submittedVersion)
- Topics
- Social Sciences › Law › Legal Language and Interpretation
- Social Sciences › Law › Indigenous Peoples' Rights and Law
- Social Sciences › Law › Judicial and Constitutional Studies
- Keywords
- textualism, Indian law, United States Supreme Court, Antonin Scalia, judicial interpretation, judicial legitimacy, legal interpretation, judicial role
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