Girls who are incarcerated share a common trait: They have often experienced multiple forms of sexual assault, at the hands of those close to them and at the hands of the state. The #MeToo movement has exposed how powerful people and institutions have facilitated pervasive sexual violence. However, there has been little attention paid to the ways that incarceration perpetuates sexual exploitation. This Article focuses on incarcerated girls and argues that the state routinely sexually assaults girls by mandating invasive, nonconsensual searches. Unwanted touching and display of private parts are common features of life before and after incarceration—from the sexual abuse many incarcerated girls experienced at home to the nonconsensual touching of their bodies they all experience when they enter detention facilities. Mandating invasive searches is a particularly gendered form of traumatization that is especially troubling given Black and Indigenous girls’ disproportionate representation in juvenile detention facilities. So, like their ancestors, their bodies have become sites for conquest, dominion, and discipline. This Article examines the severity and normality of state violence and provides a constitutional basis for eliminating blanket and routine searches by arguing that these invasive searches violate the Fourth Amendment, Thirteenth Amendment, and Eighth Amendment rights of incarcerated girls. Despite a purported concern for these girls’ rehabilitation, incarcerated girls must endure humiliating searches that require that they expose their bodies to the parental state. The routine touching that marks the everyday lives of incarcerated girls illustrates the ordinariness of the violence of incarceration in the United States.
The Supreme Court decision McGirt v. Oklahoma, confirming the boundaries of the Creek Reservation in Oklahoma, was a truly rare case in which the Court turned back arguments by federal and state governments in favor of American Indian and tribal interests. For more than a century, Oklahomans had assumed that the reservation had been terminated and acted accordingly. But only Congress can terminate an Indian reservation, and it simply had never done so in the case of the Creek Reservation. Both the majority and dissenting opinions attempted to claim the mantle of textualism, but their respective analyses led to polar opposite outcomes.
Until McGirt, a “faint-hearted” form of textualism had dominated the Court’s federal Indian law jurisprudence. This methodology enables the Court to seek outcomes consistent with the Justices’ views on how Indian law “ought to be.” This Article labels this thinking Canary Textualism, named after the dominant metaphor used for decades to describe Indian law, the miner’s canary—a caged bird used to warn of toxic gases in a mine. Canary textualists treat Indians and tribes as powerless and passive subjects of federal law and policy dictated by Congress and the Supreme Court. Canary Textualism relies on confusion in the doctrinal landscape and fear of tribal powers to justify departures from settled law. The 1978 decision Oliphant v. Suquamish Indian Tribe, in which the Supreme Court stripped Indian tribes of critical law enforcement powers by judicial fiat, is the prototypical Canary Textualism case. Oliphant’s hallmark is the Court’s legal acknowledgment that Indian tribes are dependent on the federal government in light of centuries of precedents that presumed the racial inferiority of Indian people. This allowed the Court to quietly assume that tribal governments are inferior as well.
Scholars long have decried the Court’s Canary Textualism but have rarely offered a better theory. This Article attempts to fill that gap and to provide more certainty in federal Indian law textualist doctrine that will help preclude Canary textualist activism. A far better metaphor than the miner’s canary is that of the muskrat—the hero of the Anishinaabe origin story of the great flood, a lowly, humble animal that nevertheless took courageous and thoughtful action to save creation. Indians and tribes are no longer caged birds. Tribal governments are active participants in reservation governance. They are innovative and forward-thinking. Luckily, the McGirt decision exemplifies a new form of textualism, Muskrat Textualism, that acknowledges and respects tribal actions and advancement. Muskrat textualists accept tribal governments as full partners in the American polity. Muskrat textualists accept the relevant interpretative rules that govern federal Indian law where texts are ambiguous and where texts are absent or not controlling. As a result, Muskrat Textualism is also a superior form of textualism more generally, illustrating the proper role of the judiciary in constitutional law and statutory interpretation and ensuring more predictable and just Indian law adjudication.
This Article argues that McGirt—and its embrace of Muskrat Textualism—is a sea change in federal Indian law, and rightfully so. If that is the case, then cases like Oliphant should be reconsidered and tossed into the dustbin of history.
While litigation continues in an effort to establish a fundamental right to education under the U.S. Constitution, the full historical justification for this right remains missing—a fatal flaw for many jurists. This Article fills that gap, demonstrating that the central, yet entirely overlooked, justification for a federal right to education resides in America’s education story during the era of slavery and Reconstruction. At that time, education was first and foremost about freedom. The South had criminalized education to maintain a racialized hierarchy that preserved slavery. Many African-Americans, seeing education as the means to both mental and physical freedom, made extraordinary efforts to secretly acquire it. After the War, their efforts morphed into a full-fledged public education movement. Congress, aiming to remedy slavery and repair democracy itself, responded by requiring Confederate states to guarantee education in their state constitutions. The rest of the nation followed shortly thereafter. This Article analyzes this history through the Thirteenth Amendment, the Fourteenth Amendment, the Guarantee Clause, and subsequent judicial precedent. It demonstrates, first, that the Constitution has long protected a negative right to education—the freedom to pursue learning without state interference. Second, it reveals how that negative right transformed into an affirmative one in the years immediately following the Civil War. By anchoring the right to education in multiple constitutional provisions, this Article demonstrates that the right to education permeates the very fabric of our constitutional democracy.
The Thirteenth Amendment’s prohibition of involuntary servitude carves out an exception to its protections that allows the use of forced labor as “punishment for a crime” when an individual is “duly convicted.” Courts have interpreted this language as placing a categorical bar on Thirteenth Amendment claims alleged by individuals who are incarcerated. Yet, a consistent understanding of the term “punishment” that draws from the term’s use in the Eighth Amendment’s Cruel and Unusual Punishment Clause supports a narrower interpretation of the Thirteenth Amendment’s punishment exception. This Note argues that individuals cannot be denied Thirteenth Amendment protections unless they are explicitly sentenced to labor as part of their sentence.