Related ContentHutchins: How to fix U.S. tribal policy
By
Francis G. Hutchins
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For their part, tribal leaders see freedom from state laws as just the first step toward realizing tribal "sovereignty." |
The Constitution thus accommodated without endorsing both slavery and tribal sovereignty. On the other hand, the Constitution refused even this level of respectability to racial categorizing. The Constitution alluded carefully to slaves as “other Persons” and pointedly made no mention of the fact that slave states identified slavery with a single racial group. Less glaringly but just as significantly, the Constitution’s references to “Indians” had no “blood” connotations. Rather, the odd term “Indian” was applied to a miscellany of groups that couldn’t be readily integrated into the Constitutional system. The framers of the Constitution understood well that North America’s “Indian” groups were mixed communities which had been culturally and racially transformed in multiple directions since 1492, and could scarcely be expected to stop evolving once confronted with the unprecedented challenges and opportunities offered them by the revolutionary new republic.
Both before and after the American Revolution, American Indians suffered calamitously. In the 16th, 17th and 18th centuries, European settlers fought their way onto and across the continent, with consequences that were always adversarial and often genocidal. Later, in the 19th and 20th centuries, American Indians were repeatedly victimized by the government and people of the United States. But the Constitution was drafted in the Enlightenment decades between the colonial era’s xenophobia and the racism of the 19th century, and the Constitution’s framers actively sought to avoid giving offense to North America’s “Indians,” in the expectation that they might eventually want to become U.S. citizens.
The Constitution mentioned “Indians” twice. Though both references are today commonly conflated, in fact each “Indian” reference was to a legally distinct category of non-citizen outsiders. The first category of “Indians” was deemed suitable for state regulation, whereas the second was meant to be dealt with principally (although not exclusively) by the new federal government. Article One, Section Three of the Constitution declared that the basis for the apportionment among states of payments to support the new federal government was to be the “respective numbers” of people governed by each state “excluding Indians not taxed” while including all citizens and (at a three-fifths rate) “all other Persons” – that notoriously oblique reference to slaves. Citizens and (to a lesser degree) enslaved African Americans were seen as contributing to state economies, whereas state-regulated “Indian” wards were an expense for states, and thus excluded from calculations of a state’s financial obligation to the federal government and of the related right of representation in Congress. The Constitution’s second “Indian” reference, in Article One, Section Eight, authorized Congress “To regulate Commerce” with three types of sovereigns: “with foreign Nations, and among the several States, and with the Indian Tribes.”
As successors to British colonies, American states had without controversy individually assumed guardianship of many impecunious, non-English-speaking “Indians not taxed.” The 1789 Constitution brought no change for these vulnerable mixed-race communities, which needed legal protections that only states then provided. The radically contrasting “Indian Tribes” in federally-supervised “Indian Country” were nobody’s wards. With these self-sufficient groups, President George Washington negotiated treaties because he realized that the Constitution’s new treaty process – from which states were explicitly excluded – could preserve U.S. territorial aspirations, while safeguarding dangerous martial tribes from state interference as they decided whether or not to join the new American Union.
There are today no tribes that pose a military threat to the United States, as did the racially diverse groups with which President Washington negotiated treaties, and for whose independence from the United States numerous runaway African American slaves fought. All 21st century U.S. tribes, whether formally state or federal, more closely approximate the unassimilated communities of peaceable outsiders that the Constitution assigned to state jurisdiction. Indeed, since the Constitution made state jurisdiction the nation’s norm and federal control a haphazard transitional arrangement, prior to 1934 federally regulated “Indians” were shifted whenever possible to state jurisdiction, as a way to enhance their rights and their ability to participate in U.S. society.
Fatefully, after a century and a half, this non-racial, Constitutionally-grounded process leading toward full civil equality under state jurisdiction was reversed when the 1934 Indian Reorganization Act declared groups of state citizens eligible to be federal wards, a status to be henceforth defined by “blood.” The comparatively advantageous status of state “Indians” soon began to seem unsatisfactory as federal wardship was made increasingly attractive, and even tantalizingly redefined as “sovereignty.”
The 2008 campaigns of John McCain and Barack Obama finessed hard questions relating to tribes, for example endorsing tribal “sovereignty” while ignoring whether this meant supra-Constitutional inviolability or merely municipal-style local autonomy. But the results of the election have certainly made more imaginable a new approach to tribal issues. A revised tribal paradigm cannot become law any time soon. Numerous binding agreements remain in force, some of them treaties hundreds of years old, and other contracts negotiated within the past few years, including many for tax-exempt casinos. Goals can nonetheless be identified. Starting where President Washington left off, and reviving the Constitution’s functional, non-racial approach to separating responsibility for “Indian” regulation between states and the federal government, could set a course acceptable to tribes and wholly within the parameters of our still-evolving Constitution, the indispensable basis of a national community including all Americans on a basis of full legal equality.
Francis G. Hutchins is author of “Tribes and the American Constitution,” published in 2000.
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Saturday, Jan 3 at 1:44 PM Lori Ann wrote ...
In 1871 Congress granted itself planary powers of Indian Affairs, meaning (absolute) by using the Papal Bulls Papers (colonization of America our federal Indian laws are based on these, by doing this the US made us wards, most violent act they could do us, as they continue to use this approach when dealing us today. Public law 83-280 was intended for state/cnty officals to enforce American laws on Tribal Lands a clear violation of treaty rights, 1st treaty made on turtle island should be upheld
14362068Thursday, Jan 1 at 2:41 AM Ojibwe displaced by Indian blood rule wrote ...
I agree with the premise that the IRA imposed the "indian blood" law in federal policy. This would be in violation of Worcester v. GA, which affirmed the rule of the tribe. IRA usurped precedent; re; the Rocky Boy Band of Chippewa Indians. If one reads the law enacted by Congress in 1916, and compares it to the contemporary tribe, the Chippewa Cree tribe existing now. Crees are a non-treaty tribe. These are entirely two different tribes. This is 'paternalism' rooted in slavery.
14296058Wednesday, Dec 31 at 1:10 AM Left Heron wrote ...
I don't accept the English term of sovereignty, it was created for the kings and rulers of England, and it basically means "subject to n one". As Indigeneous people we know the "creator" is who we are subject to, as all ceremonies are deeply rooted in spirituality. I disagree with the authors connotations of one world mix on this Turtle Island. We Tribal Nations are different and distinct in our own cultures, thoughts, philosophies, and belief systems unique to our own ways.
14257029Tuesday, Dec 30 at 1:07 PM Onigeahyoh wrote ...
I missed the impetus for this "Fix". Does a new US President of mixed race origins neccessitate terminating Indigenous Nationhood? If so, then why use unrelated arguments like NDN's posing no military threat, Constitutional slavery accomodation articles, and 1930's racial categorization of 'blood' as claims? Hutchins correctly notes a history of calamitous suffering, yet fails to note a key perpetrator: our deadliest enemies-the States. Using a New President to justify an old argument is no fix.
14229749Tuesday, Dec 30 at 12:35 PM Black Hills Nation wrote ...
Author only acknowledges support for own purpose. Article 6, Const. of U.S.-Treaties made w/Indian Nations, Supreme Law of the Land. Const.Fed.Law,"Previous Condition of Servitude" = You cannot govern a people unless you afford them the 'rights' they previously enjoyed and/or affording them the opportunity to the economic and legislative process. Finally, Gold was Stolen out of the Black Hills and used to build up the military and industrial Nation following the Civil War. Rights vs Permission?
14228063Tuesday, Dec 30 at 9:13 AM Monacan 2122 wrote ...
Perhaps the author should read some of the papers by Jefferson and others with the intent of protecting the Nations from the abuses of States. As well, perhaps he should read history regarding the acceptance of States by the Union that REQUIRED they NOT interfere with the Nations of those lands... REALLY, couched racism is racism nonethless. The "three-fifths" referred to by the author was solely a way for Southern slaveowners to gain increased representation in Congress. Shame journalism???
14219244Monday, Dec 29 at 2:42 PM chumash wrote ...
We are not truly protected by the laws of country. Look at what they do to our ancestors. The laws of this country are laws of consulation and only give us a false sense of protection, or even caring for native people. If we were truly reconized as soveriegn nations, we would be dealing with the state dept. when it comes to ndn issues. But we don't, we deal with the DOI, gaurdians of our parks, open lands and such, Look at the respect they give to our mother earth. Where does that leave us?
14194288Monday, Dec 29 at 2:02 PM Ted wrote ...
This authors image of everything before the IRA being a just lovely trend on its way to bliss for Indians is a rewrite of history. That tribes have culture, tradition, and unique knowledge worthy of retention, he ignores.
14192518Monday, Dec 29 at 10:51 AM Squaredup2u wrote ...
Hows about reconizing that we are separate and different peoples with varying political structures. This pan-tribalism that spills over onto governance and politics has been as detrimental to nations as colonial oppression. Putting us all in the same dugout canoe is as harmful as the imposition of policies designed by them, for us. We are not all the same. Generalizations and assumptions developed Indian Policies in north america.Ignorant policies should not be repeated, even if by our likeness.
14185463Saturday, Dec 27 at 1:27 PM quinaultbob wrote ...
US Constitution - The Non-intercourse act was passed by the first congress to thank the Native American Tribes who supported the revolution... without tribal government armies the US would have lost the war... History of tribal governments - The author ignores the writings of Robert A Williams, JR in "The American Indian in Western Legal Thought" The writings of Father Franciscus de victoria or felix cohen "handbook on Indian Law" As a Quinault Indian I take execption with the author
14143503Saturday, Dec 27 at 12:44 PM dgilio wrote ...
This is yet another argument for the deferral of tribal authority to state authority. Its construction has no basis in the reality of federal Indian law, except those who argue for imposed restraint of tribal sovereignty. It fails to consider, for example, the states' original restrictions toward tribes by the federal gov't as articulated by state organic acts and disclaimer clauses. Equality is a dangerous goal for Indians because it diminishes the extra-constitutional status of ndns.
14142193Tuesday, Dec 23 at 1:58 PM Sebastian Braun wrote ...
That approach has been tried - it was called Termination and had disastrous consequences. Please let's not repeat that mistake. Come to terms with the fact that Native nations are inherently sovereign and therefore have certain inalienable rights, as recognized (but not necessarily protected) by U.S. law. "American Indian" is NOT a racial but a legal definition, despite the blood metaphors. Any number of Supreme Court decisions point that out.
14045744Tuesday, Dec 23 at 1:55 PM wolf heart wrote ...
Maybe we need to protest like our african american brothers and sisters did in the 60s and 70s.Or maybe what the youth are doing in greece today.That seems to be the only thing the government understands.
14045538Tuesday, Dec 23 at 1:08 PM Wanbli wrote ...
All indigenous nation's that live under the laws of the current Empire, The United States Government, lives informally or formally under the B.I.A governmental ideologie and policies of domination. As soon as a soveriegn nation reconizes the U.S. as a legal entity upon his or her homelands, they not only surrender their grave yards but the souls of their nation to those that oppress and repress freedom from the First Nation People's, to truly be sovereign nations. It's time for Unity.
14043043Monday, Dec 22 at 12:32 PM Robert Goodwin wrote ...
If left to the states to protect their interests, treaty tribes could face the indignities and injustices addressed in the famous 1972 Boldt decision (U.S. v. Washington) where tribal fishing rights had been all but extinguished by the Washington Dept of Fisheries. Conversely, maintaining the status quo where tribes are at the mercy of the internal politics of the BIA and the paternalism of Congress will do little to redress their third world status, societal ills and inescapable despair.
13994953Sunday, Dec 21 at 11:15 AM White Cloud wrote ...
Legal equality or Equal protection ? Both are guaranteed in your Constitution.But your laws don’t protect us. I belong to the Konkow Valley Band of Maidu. We were forced onto the Round Valley Reservation in 1861. We were never terminated by Congress and we are a non-BIA Acknowledged tribe. We surrendered the location of our grave yards to California in 1967&68 prior to the inundation of Lake Oroville. We are being denied Repatriation of those 230 Konkow Human remains. full legal equality ?
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