Maggie Blackhawk
@MaggieBlackhawk
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Professor @NYULaw ; scholar of Congress, constitutional law, & federal Indian law; co-director, NYU-Yale American Indian Sovereignty Project; she/her/kwe.
Joined March 2009
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It has been the greatest honor of my career to write the Foreword for this term's
@HarvLRev
. I am grateful to have been able to tell this story and to tell it from the heart in such a prominent forum. As always, I dream of a day when words can change minds and hearts--and worlds.
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Against hundreds of years of congressional action, against solid
#SCOTUS
precedent, and hundreds of years of history, the Supreme Court held today that states have jurisdiction over certain crimes in Indian Country by judicial fiat. A devastating result for our democracy.
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There is little to say here other than the fact that our Supreme Court has become a superlegislature. Precedent, statutes, separation of powers, reason, the rule of law, these things all mean nothing.
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Proudest announcement: Ned Blackhawk's The Rediscovery of America: Native Peoples and the Unmaking of U.S. History is coming to book stores March 2023!
#twitterstorians
In a transformative synthesis, Blackhawk interweaves five centuries of Native and non-Native histories to show
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Also, some personal news: this is the co-authored project I have been working on during my leave:
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Hello again, friends, rather than arguing over what to call us, could you please just call your member of Congress? Ask for a “Castro-Huerta fix” to check the power of this runaway Supreme Court. (We can clarify other language later.)
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I also want to scream from the tops of rooftops (for the five people who understand the importance of this announcement): little Native girl dreams fulfilled, I get to rewrite the Cohen’s Indian Law Handbook chapter on federal power! Unbelievable luck and an unbelievable job.
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News: thrilled to contract today with Harvard University Press
@harvard_press
for my first book—on the centrality of Native peoples, Native nations, and American colonialism to US constitutional law. I would welcome writing advice from more seasoned colleagues.
#twitterstorians
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These are dark days, but a bit of sunshine has broken through: my colleagues voted today to offer me tenure and promotion to full professor. There are further steps. But I am grateful to them and to my family. This is an extraordinary privilege, not taken lightly. Nii'kinaaganaa.
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The Rediscovery of America: Native Peoples and the Unmaking of U.S. History has a cover! Graced with the eagle staff, this book will reshape our understanding of US history. Available for preorder and recommended by Publishers Weekly:
#twitterstorians
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Some news: Excited to announce this unprecedented collaboration between NYU and Yale to study and foster Native sovereignty. It is the first Indian law and policy project of this kind. We are also hiring! Postings are on the website linked in article. Come help us make history!
.
@nyulaw
announced the establishment of the NYU-Yale American Indian Sovereignty Project, led by Prof.
@MaggieBlackhawk
and
@Yale
Prof. Ned Blackhawk. Among its goals, the project will address the impact of American colonialism on Native peoples:
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It’s here! It’s real! (And it’s heavy!) The Rediscovery of America: Native Peoples and the Unmaking of U.S. History by Ned Blackhawk is shipping
#twitterstorians
:
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A bit of late-breaking news to share: I am delighted to announce that I have accepted a position as professor of law at NYU. The work of their renowned public law faculty has informed my scholarship for years now and I’m honored (and a bit surprised) to join them as a colleague.
On May 24, Dean Trevor Morrison announced that four new faculty members will take up positions at the Law School this summer: Maggie Blackhawk; César Rodríguez-Garavito; Noah Rosenblum; and Vincent Southerland:
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We also owe a great debt to Professor Wenona Singel (Little Traverse Bay Bands) whose scholarship Justice Gorsuch cited *ten times* in his concurrence (joined by Jackson & Sotomayor, JJ.). Prof. Singel leads the fields of public law and governance, and is an expert on ICWA.
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The great Ada Deer (Menominee) has left us. She reshaped modern Native self-determination: “Mainly I want to show people who say nothing can be done in this society that it just isn’t so. You don’t have to collapse just because there’s federal law in your way. Change it!”
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I can't believe that I have to clarify this, but: Kant's construction of an explicit racial hierarchy with White people on the top and Native people on the bottom does *not* make him the father of the field of critical race theory. It makes him *racist.*
Less commonly known fact: Kant's Anthropology lectures include an explicit racial hierarchy that places White people at the top, above Native Americans and then Africans. These were published *contemporaneously* to his initial forays into moral theory.
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Happy Indigenous Peoples Day! A wonderful day to learn more about the realities and history of American colonialism, as well as the vibrant world of Native governance. Learn about the 574 federally-recognized Native nations, their constitutions & laws: .
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Happy
#IndigenousPeoplesDay
! "Conservative" advocates before the Supreme Court are challenging federal Indian law as unconstitutional. Friendly reminder that
#originalism
means
#landback
. It means Native people get Louisiana and everything west. 1/
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On a "Castro-Huerta Fix": Please call your member of Congress and ask for a "Castro-Huerta Fix." No bill number yet. Although, there is draft bill language in
#SCOTUS
dissent. But, don't forget, Congress could go farther: strip jurisdiction, clarify tribal sov. vis-a-vis states..
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The
@nytimes
has published numerous articles biased against Natives. But this
@adamliptak
piece is so one-sided that, with all due respect, it reads like a puff piece for Oklahoma (whose attorneys Adam knows personally). Let’s start with the title: 1/
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#SCOTUS
could shake the foundations of Indian law this term in Brackeen, a constitutional challenge to the Indian Child Welfare Act. Honored to file a brief on behalf of
@The_OAH
and
@AHAHistorians
. This is the first time either organization has filed in an Indian law case. 1/
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Happy
#IndigenousPeoplesDay
! The United States holds hundreds of governments in subordination. Native nations have survived, and have built that resistance into US law. But we must do more. Our Constitution allowed us to become an empire, it must also give us the power to repair.
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#SCOTUS
hears oral argument today in a case that attempts an end run around the Court's 2020 McGirt decision. Even more that a direct challenge, this case risks the legitimacy of the Court and our separation of powers--once again asking SCOTUS to operate as a super legislature.
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For all my Con Law and Indian Law students (past and present), this is how you write a brief:
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Thoughts after
#Brackeen
: Native history matters. It is so powerful that many have banned it. Please, please teach Native history and Indian law.
Now gratitude:
@AmandaRockman
& our students (
@nyulaw
@YaleLawSch
@StanfordLaw
) Please relish seeing your research on these pages./1
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A full retelling of U.S. history requires much more than a reckoning over disease, violence, and dispossession—it requires acknowledging the enduring power, agency, and survival of Native nations to create a truer account of the formation and expansion of the United States.
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In celebration of Emma Kaufman's tenure, I thought I'd mark the occasion with a dive into the Kaufman oeuvre: pathbreaking work at the intersection of crimmigration and con law. We are so lucky
@nyulaw
and I'm lucky she isn't on twitter--she'd never stand for all this fawning. /1
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The
@HarvLRev
published, Federal Indian Law as Paradigm within Public Law, today. In it, I argue that we cannot understand American public law or our Constitution without recognizing the centrality of Native people, Native Nations, & American colonialism:
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This case is about Native children. But, at its base, it is an effort to destroy the few laws that mitigate American colonization of Native peoples. It is a battle between using power to solve the constitutional failure of colonialism or protecting only rights—however harmful.
NEW: The Supreme Court takes up a challenge to the Indian Child Welfare Act, potentially imperiling a large swath of federal regulations protecting tribes and their members.
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Studying and teaching America’s Indigenous truths reveals anew the varied meanings of America.
I am completely biased, but a remaking of the field of US history is long overdue and it is so important to have Native voices at the center of this project.
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Plaintiffs' arguments are baseless. The Supreme Court has long held that the category of "Indian" is one of politics and not race, and the welfare of Native children was never a traditional state function. The history of ICWA makes these distinctions all the more clear. /2
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With respect, a corrective: The Hawaiian Supreme Court interpreted its state constitution to reflect the history and tradition of the Kingdom of Hawai'i (and did not reject Bruen). But the opinion raises fascinating questions about "history & tradition" in the context of empire.
It has been 65 years since Hawaii became a state, but the Hawaiian Supreme Court appears to be having second thoughts. The unanimous Supreme Court rejected the holdings of the United States Supreme Court on the Second Amendment ...
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Humbled and proud to file the fourth Sovereignty Project amicus brief on behalf of the
@The_OAH
and the
@AHAhistorians
in Haaland v. Brackeen. The Supreme Court will consider constitutional challenges to the Indian Child Welfare Act, incl. commandeering and race discrimination.
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that European colonization in the 1600s was never a predetermined success; that Native nations helped shape England’s crisis of empire; that the first shots of the American Revolution were prompted by Indian affairs in the interior;
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The Rediscovery of America: Native Peoples and the Unmaking of US History apparently available now for preorder: (thanks,
#twitterstorians
!)
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that California Indians targeted by federally-funded militias were among the first casualties of the Civil War, that the Union victory forever recalibrated Native communities across the West, and that twentieth-century reservation activists refashioned American law and policy.
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Endless thanks to the
@The_OAH
and
@AHAhistorians
for their courageous participation and support.
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From the Founding, Native children were under the jurisdiction of tribal governments--as recognized by the federal government, which oversaw Indian affairs and the relationship between Native nations and the states. State gov. weren't offered jurisdiction until the 1920s. /3
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New publication: I offer visions toward a less court-centered constitutionalism with a case study of Indian law and American colonialism—a case study that centers not only Congress, but the philosophies and agency of Native people and nations within constitutional law & history.
@MaggieBlackhawk
(
@nyulaw
) explores how legislative constitutionalism can protect fundamental constitutional values against a hostile Supreme Court through the lens of Native people, their advocacy strategies, and the legal frameworks that govern them:
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I won a prize! Petitioning and the Making of the Administrative State took home the Cromwell Prize for best legal history article published in 2018: Endless thanks to the legal historians
@ASLHtweets
for taking me in and making me feel like family.
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Some have called recent days a Native renaissance, and I am surprised as any to see these idols fall. But I also look forward to substantive change to match these aesthetics. Empowering tribal governments is equally as important as removing racist imagery from public discourse.
Cleveland's baseball team is being renamed the Guardians, ending months of internal discussions triggered by a national reckoning by institutions and teams to permanently drop logos and names considered racist.
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Proud to join Radcliffe’s class of fellows for the 2023-24 year!
My only research leave thus far came in the spring of 2020, when the world shut down as I was five-months pregnant and completing my tenure file. I’d be grateful for advice on how best to use this precious time.
Today, we announce our 2023–2024 fellows, a cohort whose projects contend with the urgent, the beautiful, and the vast: from reckoning with the challenges of climate change to creating digital models of iconic Italian violins to detecting distant galaxies.
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Jennifer Chacón, scholar of immigration law
@StanfordLaw
, responds to my
@HarvLRev
Foreword with the grace and wisdom of a master. She presses borderlands constitutionalism farther into the U.S., to El Paso, TX, and into immigration law--where we also regulate borders and bodies.
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"Indian" in ICWA referenced the same political status that states used to refuse jurisdiction over Natives. Being "Indian" is akin to being a foreign or dual national. ICWA resembles laws like the Vienna Convention that also require states to provide notice/keep records./11
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Our Institute for Constitutional Studies seminar on Native peoples, American colonialism, and the US Constitution begins next week! I've had a few requests for the syllabus, so I thought I would share here. Thoughts, comments, criticisms welcomed.
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Congress passed ICWA in 1978 to shift course from decades of state-federal contracts (contracts that included similar placement preferences for Native families and communities) and to instead reaffirm the power of tribal governments to oversee the welfare of their own children./8
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Back when I was a law student publishing my student note, Larry Solum was one of the few scholars who read my work, engaged with it deeply, and responded to my many curious emails (Joseph Blocher at Duke, also). He remains a gem of the legal academy.
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As a former union-side labor lawyer, I couldn't agree more. But let us not forget other power movements in drawing lessons: Native people turned away from the courts from the beginning and have been building subconstitutional frameworks to redistribute power from the Founding.
Rather than look for leadership from dissents or Capitol poetry, we need to learn from people who have spent these same decades building power in *spite* of a hostile legal system. The recent victories of the labor movement, modest as they are, should be studied and replicated.
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When the federal government closed the boarding schools, it tried to convince the states the oversee the welfare of Native families and children. The states refused, arguing that Native children were the exclusive responsibility of the federal government. /4
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State governments refused to provide welfare benefits to Natives. Why? Natives were not citizens until the 1920s, states lacked taxation power and jurisdiction in Indian Country. States argued that the federal-tribal political relationship meant Natives were a federal problem. /5
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Some bittersweet news: Yesterday was my last day at Penn Law. It has been a remarkable four years. I can imagine no better place to have begun my career. I am endlessly grateful for the support of my colleagues and students. I owe them a greater debt than I can ever repay.
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Over the 1950s and 1960s, state govs. removed 25-35% of all Native children from their families, homes, and communities. This wasn't about "race," it was about the economics of a poor community that because of its political status as sovereign wasn't part of the state polity. /7
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Happy
#IndigenousPeoplesDay
! A lovely day to remember that the US Constitution has protected the power of the national government to recognize Native nations as sovereign. Let’s celebrate (and repair) this system, rather than celebrate the “discovery” of racialized hierarchy.
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We filed our second Supreme Court brief (Denezpi v. US)! Surprised to see Yale Law School's Supreme Court Clinic writing for the other side. The values at stake with American colonialism and Native sovereignty are often not legible to liberals, but they are equally important.
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In response to my critique of biased reporting by
@adamliptak
, some have called for “more expertise”
@nytimes
. Indian law is often very difficult. This is not one of those times. Here is brief intro to McGirt& the shamelessly political Bosse petition: 1/
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Huge news:
@stanfordlaw
has made a pathbreaking commitment to Indian law in hiring the first Native faculty member to join the SLS faculty--adding to their already powerhouse Indian law expertise. As an alum, I am deeply moved that my alma mater has become a field leader.
It's official...I'm joining the
@StanfordLaw
faculty and
@StanfordNACC
community this summer!!
This is a dream job. And I get to be something I dreamed about in law school--a Professor who looked like and understood me.
*brushes glass off shoulders*
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My newest essay is on SSRN: On Power & the Law: McGirt v. Oklahoma (forthcoming very soon, Sup. Ct. Rev.). This essay builds on my
@HarvLRev
article to argue that social movement theory needs to center power movements, including Native nations.
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State governments had failed to protect Native children and treated them as an unwelcome burden to state coffers. ICWA said, to the extent that states want to continue to act in this area of federal power, state govs. *must* *finally* adhere to minimum standards of removal. /9
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Want to incorporate Native nations, Native peoples, and American colonialism into your research/teaching about constitutional law and history? Come study with us this summer at Yale. The Institute for Constitutional Studies calls for faculty (& grad student) applications by 5/1.
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Excited to announce that the Sovereignty Project will file a *third* brief before the Supreme Court this term. This time in Castro-Huerta-one of the many attempts by Oklahoma to overturn McGirt (2020). The Court denied cert on whether McGirt should be overruled. But...
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New draft: Legislative Constitutionalism & Federal Indian Law. It explores what the history and law of American colonialism can offer to Supreme Court reform and toward building an alternative constitutional culture to our flawed juricentric system.
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The federal government contracted with the states and paid for Native child welfare entirely. When state governments grudgingly accepted responsibility for Native children, they took the least cost solution: place poor Native children in middle-class homes that had money. /6
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What a historic day: two Native authors awarded the Pulitzer, Louise Erdrich and
@NatalieGDiaz
—likely the first time in decades. (Alongside the brilliant and lovely
@DrMChatelain
). So much to celebrate:
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Many law students and academics have learned more from
#thisland
and
@rebeccanagle
than from any other source—including their law school classes! I’m excited to listen to this new season and honored to have played a small part.
#ThisLand
season 2 out TODAY! If you care about Indigenous rights, you need to know about this case.
We spent a yr investigating & uncovered the surprising story of how a custody battle over a Native toddler turned into a legal battle over Native rights.
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The
@YaleLJournal
just published a Note that deserves attention: Drawing on power and Native sovereignty, it suggests a novel solution to voting rights problems in Indian Country-make states compact with tribal governments over election regulation/administration.
@ElectionLawBlog
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We (Sovereignty Project) filed our sixth brief! In it, we offer
#SCOTUS
a history of the trust doctrine; its roots in treaty law & the Constitution; its development as a guide for legislative and regulatory action; and how it informs treaty interpretation.
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Finally, please do not underestimate the message sent by a firm and complete override. The United States desperately needs a more fluent conversation between the Congress and the Supreme Court, and the Court needs a reminder of its limitations.
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Ned Blackhawk’s The Rediscovery of America nominated for this year’s
@nationalbook
award in nonfiction! Love to see the American Indian Culture and Research Journal among the accomplishments of the nominees. Congratulations, Ned!
The 10 nominees for this year’s
@NationalBook
Award for Nonfiction were selected from more than 600 submissions. See the longlist here.
#NBAwards
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Federal oversight and removal standards were nothing new to state governments; the states had signed on federal-state contracts requiring the same oversight/standards for decades. ICWA does not intrude on traditional state power. Nor does ICWA deal with "race."/10
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Blackhawk’s book teems with dramatic encounters between Native actors and white Americans and gives a sense of how certain events came within an eyelash of happening differently or not at all. It asks the discipline of American history to question itself.
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Three years ago a small group of graduate students embarked on an effort to force
@Princeton
to finally hire in Native studies--including organizing a brilliant but controversial conference (where anti-sovereignty audience members yelled expletives). But, guess what happened: 1/
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I owe a great debt to my students for teaching me more than I could ever offer them. So I couldn't be more grateful to the
@PennLaw
Class of 2021 for electing me by majority vote to receive the Harvey Levin Award for Excellence in Teaching. Your support is the highest honor!
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A highly anticipated new book from legal historian, Laura Edwards (Princeton), uncovers the hidden history of marginalized peoples gathering power through the creative use of law over the 19th c. Celebrated by
@marthasjones_
and
@TiyaMilesTAM
@OxUniPress
#aslh2021
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As Oklahoma tries desperately to overturn McGirt--and have the Supreme Court rewrite treaties, I offer some thoughts on the danger of codifying subordination and violence into law, and the importance of power movements in preventing that subordination. 1/
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More on this history from our brief:
Listen in to oral argument at 10 am ET here:
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First, let's mourn. Then, let's talk about the Second Amendment: The 11th Cir. just upheld a federal law prohibiting gun possession by undocumented persons, in part, because colonists did not extend the right to Natives and the enslaved. This is broken constitutional doctrine.
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I couldn't be more impressed with Justice Gorsuch right now. Let's hope he holds ground on the opinion itself.
This point from Gorsuch—in which he deconstructs the racial-based arguments that the state is leaning on and throws a side-eye at Kavanaugh for buying it—is precisely why having Justices with Indian Country experience and an adequate grasp of basic American history is so crucial.
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Today,
@WilliamBaude
asked me whether Indian law and American colonialism had gone mainstream. Also today,
@ConstitutionCtr
launched
#FoundersLibrary
of 150 documents and 50 Supreme Court cases: not a single Indian law case or treaty among them. Fair to say the answer is no. /1
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History provides common soil for growth and a window into a nation’s future. It is time to reimagine U.S. history outside the tropes of discovery. The challenges of our time—racial strife, climate crisis, inequality—require new concepts and commitments.
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Congratulations, Ned, and what a citation!
Ned Blackhawk’s stunning achievement in The Rediscovery of America flows from his opening question: “How can a nation founded on the homelands of dispossessed Indigenous peoples be the world’s most exemplary democracy?” /1
Together with
@columbiajourn
, we’re pleased to announce the winners & finalists of the 2024
#LukasPrizes
, which honor excellence in nonfiction writing. Congratulations to
@DashkaSlater
, Alice Driver,
@boissolm
, Ned Blackhawk,
@KerryHowley
and Gary J. Bass!
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Congratulations!
Ned Blackhawk named Howard R. Lamar Professor of History and American Studies
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As I’ve said before, colonialism doesn’t just hurt Natives, it undermines the United States. Colonialism hurts us all. It apparently also hurts the quality of reporting from
@nytimes
9/end
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Dear
#twitterstorians
, I am putting together a new reading group: Race, Power, and the Law. I would love recommendations for great work on power movements-Black or Native, in particular, and especially those that reach beyond the civil rights era. Many thanks!
@womnknowhistory
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The definition of “shamelessly political”: Just a few short months after the Supreme Court issued McGirt v. Oklahoma, Oklahoma is asking the Court to overrule it. The treaty the Court interpreted was crafted in the 19th c. The law hasn’t changed. What has? The justices.
The Supreme Court got the McGirt decision wrong, and we are respectfully asking the Court to overturn its decision or to limit it to certain federal crimes.
Without action, the negative consequences will damage Oklahomans for years to come.
More: . (2/2)
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“The soul of our politics is a commitment to ending domination.” — bell hooks
An incredible loss today of a brilliant soul who understood fundamentally the emotional and personal nature of our democracy—necessarily more aspirational than realized.
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Dragging at the finish, but proud of assembling a Con Law syllabus including
@DorothyERoberts
, Robin West, Insular Cases, Jefferson's 1803 proposed amendments to inc. Louisiana, Kimberlé Crenshaw, Patricia Williams,
@jamalgreene
, and US v. Nice on exec power (thanks
@LeahLitman
)
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Indian Country is going to have to start referring to Justice Gorsuch as the "Notorious NG." It has a nice ring to it. (The opinion sings of how law--through treaties, precedent, and statutes--should govern. Law has protected Indian Country as the Notorious NG reminds us)
#McGirt
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One moment from the
#NationalBookAwards
for
#NativeTwitter
: within 30 minutes three(!) Indigenous people took the stage--Heid Erdrich (Turtle Mountain), Craig Santos Perez (Chamoru), and Ned Blackhawk (Western Shoshone). Our ancestors were with us. The earth moved under our feet.
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Still trying to find the words “exclusive judicial review” in the Constitution.
Still trying to find the word “abortion” in the Constitution.
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Historic hire for
@umichlaw
! UMich has long had a very strong Native history and Native studies contingent, but without an Indian law faculty member in the law school. Professor Fletcher is not only enrolled in a nation in Michigan, he is also an alum of UMich & UMich Law!
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I am truly honored to announce that I have been appointed a Public Member of the Administrative Conference of the United States
@acusgov
. It is as much, if not more of an honor to have been appointed to serve alongside my incredible colleagues Mila Sohoni and
@AbbeGluck
.
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Honored to have been elected to the board of directors of the American Society for Legal History. The ASLH community somehow manages to be extraordinarily accomplished, while remaining profoundly humane. It means the world to take some small part in moving that project forward.
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