In "Courts of Indian Offenses, Courts of Indian Resistance," Prof. @alexfay.bsky.social of Tulsa College of Law examines the Courts of Indian Offenses' early 20th century structure & function, detailing how law & legal institutions operate as sites of colonial struggle
READ: bit.ly/MLRVol124Iss5Fay
Henry's research on historians' amicus briefs is featured in the NYTimes! @henry-ishitani.bsky.social www.nytimes.com/2025/08/04/u...
Tomorrow's SCOTUS arguments address whether the Constitution allows church-run charter schools and whether states can refuse them. The Court may also answer a vital Indian law question:whether it will use the US's treatment of Natives as "history and tradition" to set constitutional rules elsewhere.
Special thanks to @toreydolan.bsky.social for helping me think through this piece and for her ongoing work calling out bad uses of Indian law
Anyway, if you want something very useful and responsive to this moment, see Greg Ablavsky and Bethany Berger. papers.ssrn.com/sol3/papers....
It’s also not particularly useful because I wrote it last fall for a law review symposium, when I thought Elk was primarily a historical curiosity useful for clarifying the development of federal Indian policy. Not an insulting touchstone in an absurd ongoing debate about the nature of our country.
It’s not particularly useful in part because Elk v Wilkins is really not useful for those who would take away birthright citizenship. It speaks to a unique moment in American history between two major restructuring events: Reconstruction and Allotment. A moment foreign to the present.
Available on SSRN papers.ssrn.com/sol3/papers....
Abstract
Table of Contents
I’ve been sitting on a paper. I’ve been reluctant to share this Elk v Wilkins piece because it was written almost entirely before the current birthright citizenship travesty. It’s coming out in Wash. U’s upcoming symposium volume.
We were lucky to have you!
In case there was any doubt that Trump will try to put History Departments into "receivership" next.
"Today, President Donald J. Trump signed an Executive Order restoring truth and sanity to American history."
www.whitehouse.gov/fact-sheets/...
Thanks for all your help, Tanner!
Thank you!!
This is something I’ve been thinking about as a very junior scholar. When and how I ought to be clear about my political commitments. I think it’s helpful to see senior scholars model this, even if they don’t have the same pre-tenure considerations.
This legal history project studies the Courts of Indian Offenses, the federally imposed reservation courts designed to criminalize tribal culture. This archival study shows how in practice, Native actors co-opted the courts to serve their own ends in the late nineteenth century.
I have an article forthcoming in the Michigan Law Review! And now it’s up on SSRN.
Comments, suggestions, and criticism are welcome.
papers.ssrn.com/sol3/papers....
