A lot of what our government can and cannot do is based on precedent, which is a legal way of saying if our country did something before, it can do it again.

Especially if we've done it before a lot, and you let us do it.

We don't actually think through, ah, was this a good idea when we did this quite a few times.

The one area of exception is around, um, the area of human enslavement and Jim Crow segregation.

And those are areas where we have explicit constitutional amendments as well as decisions that have later repudiated things.

Like, we shouldn't put people in concentration camps again." What you're saying, like, we've never had that edit.

So I dug really deeply into the, the question of Japanese American incarceration and Indian law.

And come to find out, the two detention camps under the War Relocation Authority were built on Indian reservations.

Something I've been wondering about is, like, where does that understanding get us? What, how, how does it help us?

So the inevitable question I get asked as a scholar of constitutional law is, "Well, how do we even uphold a constitution that was capable of this?" No one wants to, especially when the house is on fire, to take the house apart and build it back together again.

'Cause you're afraid if you take it apart, it's never going to come back together again.

And I think that's the f- the deep irony of growing up in America as a Native person.

You have more belief in America than Americans do because you've known it's flawed all along, and you've still fought for it and still wanted to be part of it.

I feel like as a Native person, our history's often treated as niche, as this tragic, distant thing that happened in the past, and the assumption is that it's not relevant to the American present.

The relationship between the US and Native nations and Native peoples has shaped not only the lives and experiences, uh, and governments of Native peoples but has shaped fundamentally the lives, experience, and governments of everyone else in North America as well.

We just don't think about it and don't talk about it, but it's part of who we are.

These zones exist because of the way that generation after generation of leaders and lawmakers executed their vision of a nation and a government that stretches the length of a continent.

The history of how the United States built that empire for liberty from sea to shining sea, the one that we often imagine sprung whole cloth from these founding moments, how the US built it was through the imposition of forms of government that were top-down, executive-driven, and non-representative.

So it's difficult to see them as anything but authoritarian from their beginnings.

It was by design, and they were seen as a way to develop people towards a constitutional vision, rather than building a government to represent those people and all their diversity of language and religion.

It became our law.

You know, at the founding, the states were the creator of the federal government and the US Constitution, but by 1861, the majority of states were created by the federal government.

So it really shifts our vision of the United States on its head to track the development of these governments, and they were not representative.

So we spent more of our time building executive power for top-down government using the military, forms of military occupation and intervention, to set the stage for these authoritarian governments, and then an authoritarian top-down government that would govern some of our states for over 100 years.

A lot of what our government can and cannot do is based on precedent, which is a legal way of saying if our country did something before, it can do it again.

Especially if we've done it before a lot, and you let us do it.

We don't actually think through, ah, was this a good idea when we did this quite a few times.

The one area of exception is around, um, the area of human enslavement and Jim Crow segregation.

And those are areas where we have explicit constitutional amendments as well as decisions that have later repudiated things.

[laughs] Like we shouldn't put people in concentration camps again." What you're saying, like we've never had that edit.

So I dug really deeply into the, the question of Japanese American incarceration and Indian law.

And come to find out, the two detention camps under the War Relocation Authority were built on Indian reservations.

The same body of law that was created and agreed upon by a small group of elites on the eastern seaboard came to govern the entire massive stretch that would eventually be the United States.

That process of constructing that sea to shining sea and now overseas vision of the United States was a long process that we have essentially all forgotten because we immediately envision at least the continental United States as something that sprung whole cloth from the founding moments.

Because it's not like each of those states had a moment of constitutional deliberation.

There wasn't a constitutional amendment every single time new lands, peoples, and states were added to that constitution, bringing everyone into it.

Actually, there was a moment where that could have been possible, where Thomas Jefferson was about to propose that, where John Quincy Adams really wanted to have an amendment process.

But out of pragmatism, out of the desire to expand regardless of the constitutional and governmental forms that that expansion took, they rejected it.

They did not have that amendment process.

Mm-hmm.

Mm-hmm.

And rather than litigate the issues, um, to the end, they instead settled the case.

And when they announced the settlement, uh, they also announced that one of the reasons that they feel that they have power to do this through settlement is because there was this earlier case in 2011 called Keepseagle, which was a case that was brought by Native American farmers against the Department of Agriculture.

So the Native American farmers brought claims of discrimination, and the Obama administration settled it.

And so they're pointing to KeepseagleAs an example of something the federal government has done before that justifies what they're doing now.

The way the constitutional right to birthright citizenship was written intentionally carved out Native people, and the Trump administration is trying to use that carve out, is just trying to kinda use the fact that there's a carve out, to say that birthright citizenship has exceptions and that it had exceptions from the beginning, and that today that exception should apply to the children of undocumented people.

Also, it, it ties into your question about why, why can the administration point to Indian law and seemingly not have a problem with it.

I- in large part it's because I think most of the American public doesn't have a sense of what was actually done to Native people.

So I'm just wondering how we square this idea seemingly embedded in the Constitution that Native people are both a subordinate class and a nation unto themselves.

To think that this Constitutional moment was so pivotal, I think is, to misunderstand it as a document that formed the nation state that included and excluded Native people.

What you can see in the concept of Indian, and this is, you know, the, the legal shifts that were happening at the time, the idea that the law of nations, that natural law could be more positivist, could be wrested from the sovereign and declared by, you know, everyone, at least rational, um, uh, civilized people.

The effort to create this category of Indian was an effort to press that positivism, that lawmaking sense away from Native people, to say there are classes of people in the world, and not just racialized but it's religion, it's Christianity, but to say there are certain people who can, who have governments who can make these laws, who can be within these legal frameworks where we can make treaties and have conversations, and Indians are not part of that conversation anymore.

They weren't before as full-throated participants, but they're even less going to be at the table moving forward, and you can see that through treaty practice as well as the Constitutional practice that formed in the US after that.

But the, the idea that there is like a singular Constitution, the fact that this Constitution, um, shifted thinking in North America, I would just be hesitant to have those frames in the way that we read history, because in many ways, the simple stories that we're telling on the left are allowing the simple stories on the right to continue about Native people are savages at war with one another, um, who, you know, this is Justice Alito, of course, you know, they're, they're just constantly at war, and we came and they were violent and we brought civilization to these areas.

We actually made it better.

It requires us to embrace colonialism than search around the margins for ways to salvage a few rights for Native people.