The AFF forces indigenous territories into a double bind – risking rigid constitutionalism or congressional domination. Overturning the Insular cases in the name of anti-discrimination reproduces the colonial project.

Even the most cursory attention to this adjacent context would reveal that the endeavor to cast the Insular Cases entirely within the mold of Plessy is fraught. As Blackhawk observes, not only does the history of colonialism and dispossession of native lands “offer[] different, yet equally important, lessons about how to distribute and limit governmental power,” it is also frequently the case that “[i]ntegrationist . . . frameworks like that of Brown are feared in Indian law, rather than celebrated.”363 Noting that those frameworks and their rhetoric “have long been used as a tool to further the colonial project against Native peoples,” both directly as an instrument “of dispossession” and as a force “to disrupt the power of tribal governments,”364 Blackhawk argues that “[t]he judiciary, long viewed as the ideal branch to empower in order to protect minorities, has been devastating to Indian law.”365 Indeed, contemporary efforts to diminish tribal sovereignty and erase special federal recognitions for tribes like the Indian Child Welfare Act—efforts that trace back to some of the same lawyers behind Tuaua and Fitisemanu366—is awash in rhetoric that likens solicitude for Indian tribes to “separate-but-equal.”367 Addie Rolnick’s contribution to this Yale Law Journal Special Issue takes an even broader view of what this portends, foreseeing that aggressive constitutional litigation in the territories—litigation that has passed below the radar of even the many Indian-law scholars and advocates who are mobilizing against these same arguments in other types of litigation368—may be a new proving ground for legal strategies that seek to not only refashion the Reconstruction Amendments’ “race jurisprudence to prevent recognition of Indigenous rights,” but to carve a “newly strengthened vision of colorblindness” that will eventually boomerang to “further chip away at the rights of non-Indigenous minorities.”369

At the heart of the Supreme Court’s troubled history with Indian law is the seeming tension between the assimilative force of formal equality ideals and the Court’s perpetually wavering recognition of tribal sovereignty.370 As for the American Samoan intervenors in Fitisemanu, Indian law is marked by threshold ambiguities concerning both the source and scope of federal power over Indian affairs. This widely manipulable ambiguity frequently forces Indian communities into a “double bind” when weighing exercises of their sovereignty and when arguing before federal courts. In the words of Angela Riley, Indian communities often “must continue to defend a system that produces inequities in order to stave off any further encroachment” of their tenuous sovereign recognition.371 Because so many “questions remain as to whether and to what extent tribal governments are constrained by the Bill of Rights or comparable restrictions,” as well as “how inherent tribal sovereignty relates to the power of Congress to modify tribal rights,” tribes—and now American Samoa—have been forced onto a tightrope between invoking rigid constitutionalism as a shield against state-government or congressional domination and embracing arguments that sound in accommodating culture or autonomy in “extraconstitutional” zones.372 Indeed, it should come as no surprise to find a recognition of the difficulties that federal judicial review has posed for Indian tribes at the surface of American Samoa’s discourse on birthright citizenship and land tenure.373

As with the law of territories, this dilemma does not belong to any particular doctrinal idea. Indeed, the source and scope of federal power over Indian affairs has, over the past two centuries, migrated both in and out of the Constitution’s text, giving muddled meaning to devices frequently misapprehended as “extraconstitutional” or “plenary” power. Thus, the core dilemmas “knocking at the door of federal Indian law and demanding to be answered”374 are akin to those the Aurelius Court refused to acknowledge in determining the relationship between territorial governments, the Appointments Clause, and Article III’s historical practice. As I discuss in Part V, it is critical that any judicial engagement with the law of the territories hold a conversation with these features of Federal Indian law—while also acknowledging the limits to their comparison. This is just as much a reason for Indian law scholars to begin paying closer attention to what is happening in cases like Aurelius and Fitisemanu, as they prove that the constitutional dilemmas attending constitutionalism and promise keeping in Indian law are not sui generis to the degree many have assumed.

In more practical terms, Blackhawk sees the limits of Reconstruction’s racedominant minority-rights paradigm—the dominant paradigm in American legal doctrine and pedagogy—as requiring that “[d]ebates over the role of the judiciary and judicial review should look beyond antidiscrimination law and the paradigmatic case of slavery and Jim Crow segregation in order to better articulate the Court’s role as arbiter of our constitutional values,” adding that “[m]uch of federal Indian law is absent from the constitutional law canon because much of it exists outside the courts.”375 This points to still more adaptable lessons for those advancing calls for judicial intervention to curtail territorial exceptionalism and overturn the Insular Cases; for instance, that some theorists believe Indian law’s Brown v. Board moment was a legislative—and not judicial—intervention.376 To be sure, this barely scratches the surface of what those calling for judicial intervention on territorial exceptionalism and the Insular Cases stand to gain from more sustained engagement with the contours of Federal Indian law.377