Mohawk: Law and politics in Indian country

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There is no question that indigenous peoples enjoyed sovereignty. They made their own laws and rules and they had power to enforce those laws. Although there are hundreds of cultures and each did things in a distinct way, it is certain that each of them developed a way to settle disputes among their members. The widespread adoption of confederations across North America is evidence that there were ways of settling disputes among and between different nations as well. By all accounts indigenous laws and customs as they existed in 1492 and from immemorial were sophisticated, complex, and honorably practiced.

The ancient Indian governments derived their powers from the people of their nation and occasionally from spiritual sources. Some Indian nations had constitutions, others carried their rules in oral traditions, and most had unlimited power to rule within their own territories and over their own people. To the extent that a government is defined by the laws and customs of its own culture and traditions and is able to enjoy freedom to make rules and settle disputes among its own people, and to make agreements and conduct relations with other peoples, it is a true indigenous government.

Of course, there are those who would lead us to believe that there are very few such governments within the boundaries of the United States and Canada. Both the U.S. and Canada have a long history of efforts to purposefully erode or diminish indigenous sovereignty and especially jurisdiction over their lands and peoples. Indigenous laws and customs do not give the U.S. or Canada the right or the power to interfere in the internal affairs of the indigenous nations, and international law gives no such rights or powers but both countries have assumed absolute power to do so. The United States has even arrogated to itself the power to "terminate" or extinguish the legal and physical existence of Indian nations. Indian nations have, therefore, survived under a cloud of subjugation and sometimes oppression wherein their interests have been ignored and subsumed under the interests of the United States.

It hasn't always been this way. When the United States was first established, Congress promised that "(t)he utmost good faith shall always be observed toward the Indians; their lands and property shall never be taken from them without their consent, and in their property, rights, and liberty, they never shall be invaded or disturbed..." Some of the states never honored these words. In Georgia and New York Indians were arrested for crimes in Indian country and were subjected to vigilante justice - which had a color of state law. These executions were later recognized as illegal and the federal government eventually stepped in to stop them.

Some Indian nations agreed in treaties that some crimes committed by Indians against whites in Indian country could be adjudicated under federal law, and by 1817 the U.S. Congress passed the General Crimes Act which extended this law to tribes which had not agreed to this kind of transferred jurisdiction. A landmark case which was a serious blow to Indian sovereignty came six years later in Johnson and Graham's Lessee v. McIntosh in which the Supreme Court decided that no matter how illegal or immoral a claim by the U.S. government to Indian land may be, the court could not question it. This was the beginning of the "political question doctrine" in Indian law, and it was a license to steal.

By 1831 the state of Georgia was intent on destroying the Cherokee Nation in violation of treaties with the United States. When the Cherokee Nation sued (Cherokee Nation v. Georgia) the Supreme Court opined that only a foreign state could bring such a suit and the framers of the constitution did not view Indian nations as foreign states in this sense. This decision, as are many decisions of the Supreme Court in Indian cases, states not the law, but the political position of the United States. It was the political position of the United States that they could take Indian land without due cause or just compensation, and they took it, and the courts raised no objections. In this case, when a state was doing this, the Supreme Court decided that federal law did not protect Indian rights and the United States had no honor.

By 1846, Chief Justice Taney, in United States v. Rogers, was arguing that Indian nations were not regarded as nations at all, nor "regarded as owners of the territories they respectively occupied." In other words, the Indian nations had no rights as nations, and no rights to protection of property. But despite such rulings, the federal courts moved to keep power over the Indians away from the states and in 1866 the Supreme Court decided that Kansas had no right to tax Indians. In 1870 the Supreme Court, in The Cherokee Tobacco Case, decided that the federal government could tax Indian territory.

There are far too many aspects of the federal law in Indian country to address in a column, but the racialization of Indian membership in federal law deserves mention. In America, race is socially constructed by law in ways which limit and restrict the rights and possibilities of the subjects. Indians have been treated more as a racial category than as separate nations, and membership in Indian nations is determined by racial markers such as blood quantum and not by the standards of nations such as where a person is born and what laws they follow, their language, and their allegiances. It is possible to be born in England to English parents and to spend a life there, never seeing an Indian, but to be Indian by law because of the existence of some long-forgotten Indian ancestor. And it is possible to be born in Indian country to two Indian parents, fully conversant in the language and customs of the people, but to be left off any "tribal roll."

Membership in Indian nations has been largely determined by racial ideas which are now obsolete everywhere but have been internalized in Indian country. In some of Indian country, where blood quantum prevails, the long-term prospects are that the numbers eligible for membership in the Indian nation will decline over time. In others, the membership will increasingly be people who have little or no connection to Indian country, the culture, or the people.

This is, in broad strokes, how laws which were not based on the traditions and customs of the Indian nations threaten to continue to erode the cultures and peoples and sovereignty of Indian country. This, it seems to me, is consistent with Justice Taney's intent.

John C. Mohawk, Ph.D., columnist for Indian Country Today, is an author and professor in the Center for the Americas at the State University of New York at Buffalo.