Larry EchoHawk
Excerpted from: Larry EchoHawk, Justice for Native Americans Requires Returning to Our
Constitutional Origins Vine Deloria, Jr. & David E. Wilkins Tribes, Treaties, and
Constitutional
Tribulations University of Texas Press 1999, 4 GREENBAG 2nd 101 (Autumn 2000 )
SINCE COLUMBUS' DISCOVERY of a new world, legal scholars and jurists have struggled to
respect and define the rights of the dark-skinned natives who originally inhabited the land. The
Europeans' struggle resulted in the formulation of a 'Doctrine of Discovery' in the 16th Century
that gave legal title to the newly discovered lands to the discovering nation, subject to the right of
the native people to 'occupy' the land. Of course, the European discoverers invoked the 'Doctrine
of Discovery' to extinguish the natives' right of occupancy through 'just' means in order to acquire
valuable natural resources and make room for settlement of non-indigenous white people.
The European process of acquiring lands inhabited by natives by extinguishing their right of
occupancy involved nation-to-nation dealing through written treaties. Thus, long before the
United States came into being, European nations established the precedent that treaty-making
with Indian tribes was the normal method of acquiring lands for settlement, maintaining peaceful
relationships, and regulating trade and commerce. It was, therefore, only natural that when the
United States became an independent nation it would follow the example set by England and
other European nations by dealing with Indian tribes as sovereign nations through treaties. One
would think that the United States Constitution, the basic organic document of government in the
United States, would define the legal status of Indian tribes when it carefully described the powers
of the federal and state governments and how they would relate to one another and foreign
nations. After all, not only was there a well-established history of dealing with Indian tribes on a
nation-to-nation basis, but at the time the Constitution was drafted and ratified Indians tribes
occupied much of the land within the expanding boundaries of the United States. Remarkably, the
framers of the Constitution only mentioned Indian tribes twice in the text of the Constitution, and
neither of the two phrases mentioning Indians expressly described how the Indian nations would
relate to the federal and state governments. The failure of the Constitution to precisely define the
legal status of Indian tribes and the authority of federal and state governments in Indian affairs
gave rise to confusion, conflict, confiscation and corruption.
Unintentionally, it became the province of the federal judiciary to lead the way in gradually
defining the legal status of Indian nations and how tribal sovereignty would be dealt with under
American law. The result has been a continuous vacillation in federal law defining the rights of
Indians since the Constitution was adopted in 1789. Today, the law defining the relationship
between Indian tribes and the federal and state governments is far from clear. Consequently, the
future of Indian rights remains uncertain because history demonstrates that Indians have been
repeatedly treated unjustly and the Constitution has failed to protect them.
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