Hutchins: How to fix U.S. tribal policy

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The election of a U.S. President whose heritage includes multiple ethnicities has been hailed around the world as a milestone for racial integration. Ironically, one day before Barack Obama’s election, the U.S. Supreme Court was at work discussing how to implement a 1934 federal law promoting racial segregation. In Carcieri v. Kempthorne, a case pitting the State of Rhode Island against the federal government as guardian of the Narragansett Tribe, neither side nor any of the justices questioned the propriety of the 1934 Indian Reorganization Act’s directive that the federal government raise protective legal walls around persons of “one-half or more Indian blood,” although several justices did express annoyance at the Act’s circular definition of “Indian blood” as the “blood” of an “Indian.”

Discredited elsewhere, 1930s race-thinking persists in U.S. tribal policy. Under current federal law, more than 500 groups presumed to possess “Indian blood” are authorized to govern themselves on reservations that are to varying degrees exempt from the laws of the states in which they are located. As these privileged “Indian blood” communities grow – and with federal recognition of additional such entities planned – states are worried about ever-increasing impediments to their ability to govern. For their part, tribal leaders see freedom from state laws as just the first step toward realizing tribal “sovereignty.”

Definitions of sovereignty differ, but many tribal advocates contend that because tribes were independent nations prior to the American Revolution they are beyond the reach of both federal and state authority in vital respects, having been in effect grandfathered into the American Constitution. This argument encourages the impression that American Indians have only a limited allegiance to the country of which they are citizens. It also misrepresents the Constitution. The framers of the Constitution made compromise arrangements for dealing with “Indian” communities resident in U.S.-claimed territory, just as they accepted slavery as a current reality in most states of the Union. Yet the Constitution did not preclude the future abolition of slavery. Similarly the Constitution acknowledged tribal sovereignty as a practical necessity, since the scores of independent-minded “Indian” communities on U.S.-claimed soil clearly could not be integrated into the American Union on a basis of equality any time soon. But nothing in the Constitution implied permanence for its various “Indian” provisions.

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.