The Task of Hearing What Has Already Been Said: History and Native American Legal Claims

Abstract

This essay considers several recent invocations of history by American judges. It does so in the context of Native American legal claims,' but its point about the demands and abuse of history has broader implications. My argument is that each of three distinct judicial approaches to the past exemplified by these decisions is seriously flawed. Taken together, however, these cases underscore how claims purportedly derived from history can become a powerful whipsaw. As we will see, these recent decisions employ history inconsistently, yet with devastating effectiveness, against Indian claims. They demonstrate how commonplace it is for judges to make claims based on history, while blithely remaining blind to the crucial understandings at the confluence of memory, meaning and historical accuracy.