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93 Tul. L. Rev. 269 (2018-2019)
Originalism and Indians

handle is hein.journals/tulr93 and id is 301 raw text is: Originalism and Indians M. Alexander Pearl* Indian tribes, in the context of US. constitutional theory, do not fit. They are an anomaly in American governmental structure. Tribal governments exist today within the constitutional framework of the United States only by virtue ofacrobatic displays of rhetorical legal reasoning and mythologized interpretations of history. Originalist theory can provide a clear exit from the inconsistencies and inaccuracies underlying the foundation offederal Indian law. Typically, scholars embracing an originalist position are thought of as conservative. A conservative position is typically associated with opposition to tribal sovereignty. In contrast to those traditional views, I argue that an originalist view of the Constitution can produce a very different constitutional understanding of Indian tribes that supports a robust construction of tribal sovereignty. Today, a number of originalists occupy seats on the United States Supreme Court, but their respective records on Indian law decisions are distinct. To advance an originalist constitutional theory supportive of meaningful tribal sovereignty, this Article compares the jurisprudence ofJustice Thomas and Justice Gorsuch with respect to Indian law. These two Justices, supposedly cut from the same originalist cloth, provide aperfect opportunity to critically examine the complexities of originalism as applied to Indian tribes. I offer a new originalist vision of federal Indian law and tribal sovereignty and suggest itfits squarely within the jurisprudence ofJustice Gorsuch. I also contend that Justice Thomas's record on Indian law reflects anti-originalist principles by reaffirming longstanding historical misconceptions of the fundamental precepts of the United States and applying contemporary definitions to constitutional terms. I end by identifying the longstanding federal Indian law principles that are fundamentally inconsistent with this view I. INTRODUCTION. ............................... .......271 II. ORIGINALISM ................................ ......273 A. History and Evolution of Originalism ..... ......274 B. Originalism Applied: Administrative Law .... ....279 1. The Nondelegation Doctrine and Chevron Deference ............................280 2. Justice Gorsuch on Administrative Law...................286 3. Justice Thomas on Administrative Law ...................291 III. INDIAN TRIBES IN THE U.S. LEGAL STRUCTURE ................294 A. Overview ofFederal Indian Law ...............295 1. United States Constitution and Indian Tribes...........295 * C 2018 M. Alexander Pearl. Professor, Director of the Center for Water Law and Policy, Texas Tech University School of Law. Enrolled Citizen of the Chickasaw Nation. I would like to express my sincere appreciation for the excellent work done by the Tulane Law Review staff. I also want to thank Ezra Rosser and Richard Murphy for the incredibly helpful comments on earlier versions of this Article. Jamie Baker provided critical assistance to this Article, and Megan Soliz deserves special recognition for her edits and timely work on this project. All errors are mine alone. 269

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