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UH Law Center Spring 2021 External Workshop Series: Penn Law Professor Blackhawk discusses transformative potential of Indian law

University of Pennsylvania Carey Law School Assistant Professor Maggie Blackhawk addressed University of Houston Law Center faculty and students during a virtual presentation last week.

University of Pennsylvania Carey Law School Assistant Professor Maggie Blackhawk addressed University of Houston Law Center faculty and students during a virtual presentation last week.

April 8, 2021 - The 2021 University of Houston Law Center Spring Workshop Series, “Race, Social Change, and the Law,” featured an in-depth with visiting speaker Professor Maggie Blackhawk of the University of Pennsylvania Carrey Law School on March 29.

During the discussion, Blackhawk discussed her project, “On Power and the Law: McGirt v. Oklahoma,” which aims to encourage a broader understanding of Native peoples and colonialism as well as tackle the erasure of Native peoples.

Blackhawk’s talk focused on McGirt v. Oklahoma, a recent Supreme Court case that centered on themes such as power and sovereignty, and specifically the Major Crimes Act. A landmark case, that could result in the recognition that one-third to one-half of the state of Oklahoma existing within an Indian reservation.

“Before the Court issued its opinion in McGirt,it was widely presumed that Court would not follow the law because Tulsa would exist within a reservation,” she said. “The case revealed the dynamic of ideology shaping the law. The dominant ideology is one of Native erasure and the erasure of majority-minority governance.”

Blackhawk’s project examines three lessons from McGirt v. Oklahoma. The first is that scholars of legal change should study power movements generally and Native advocacy specifically.  The second is to learn from these power movements how historical argument can be used to unsettle power inequities by showing how Native erasure is a historical and inaccurate. The third lesson argues that Native representatives should continue to focus on changing the law and changing the world—rather than trying to change the public mind.

In terms of power strategies, Blackhawk said “it means to push forward with legal positions, even when they appear radical to the general public, and aim to codify those radical positions into formal legal texts. We must focus on ways that Native advocates shift power to their communities.”

During the question-and-answer session, faculty and students discussed topics such as public discourse, reparations, and the dichotomy of treaty recognition and erasure. There was also the topic of the differences between paradigmatic “social movements” like the civil rights movement and power movements like the advocacy campaigns of Native people.

Blackhawk described that Native people have had more success in the past in advocating to formal legal institutions and in organizing around power and sovereignty—than in the more traditional social movement organization around rights. She said the fight for rights shouldn’t be excluded, but that it alone is not enough.  Native people, through recognized inherent tribal sovereignty, should be able to define rights for themselves.

“We need to understand the mechanisms by which legal reform happens,” she said. “Native advocacy offers a distinctive model of legal reform from which we can all learn.  The erasure of Native people from our understanding of the law is not serving the academy well.”

Blackhawk’s main research and teaching focus on the fields of constitutional law, federal Indian law, and legislation. She is a graduate of the University of California, Los Angeles, and Stanford Law School, and some of her recent projects examine how American democracy can and should empower minorities, especially outside of traditional rights and courts-based frameworks. She has been awarded the American Society for Legal History's William Nelson Cromwell Article Prize, and her research has been published or is forthcoming in publications such as the Harvard Law Review, Stanford Law Review, Yale Law Journal, Columbia Law Review, and Cambridge University Press. Blackhawk plans to expand her project, “Federal Indian Law as Paradigm Within Public Law,”into a book that delves into Native nations, Native people, and American colonialism.

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