Newcomb: How not to fix U.S. Indian policy


In his guest column, “How to fix U.S. tribal policy,” Francis G. Hutchins presents his own particular take on the history of U.S.-Indian policy since the beginning of the United States. (At one time, Mr. Hutchins was an expert witness for the Town of Mashpee, Mass., and therefore in opposition to the Mashpee Indians). However, despite his promising title, Mr. Hutchins does not suggest any specific way to “fix” U.S. Indian policy, other than by adopting his states’ rights philosophy and historical perspective.

Deftly written, Hutchins’ article contains a subtext of assimilation, albeit argued in the measured tone of supposedly “well-reasoned” discourse.

After presenting the reader with his version of history, Mr. Hutchins says that the result of the 2008 election makes “more imaginable a new approach to tribal issues.” The approach he has in mind is “a revised tribal paradigm” that, he acknowledges, “cannot become law anytime soon.”

The alternative political framework that Mr. Hutchins advocates is one in which Indian nations (which he refers to as “tribes” and “groups”) become further subject to both state and federal regulation. His ideal scenario is one in which state-federal arrangements are made that separate “responsibility for ‘Indian’ regulation between states and the federal government.”

Such regulatory arrangements ought to be constructed, Mr. Hutchins suggests, “within the parameters of our still-evolving Constitution, the indispensable basis of a national community including all Americans on a basis of legal equality.” In this last sentence, we find the familiar phrasing and rhetoric of the Anti-Indian movement, one that claims that Indian rights must be the same as individual civil rights in order to be “equal.” The way he phrases this argument is by saying that Indian people ought to learn to exist as “Americans” on “a basis of legal equality.” Mr. Hutchins’ refusal to acknowledge the collective rights of Indian nations is an old Anti-Indian “melting pot” position that he is proposing as a new “fix.”

Deftly written, Hutchins’ article contains a subtext of assimilation, albeit argued in the measured tone of supposedly “well-reasoned” discourse.

Even though Mr. Hutchins does acknowledge the fact of Indian treaties with the United States, he avoids using the phrase “Indian nations” in his essay. He refers to Indians during the time of the early United States as “self-sufficient groups.” And he says that “President Washington negotiated treaties with Indians because he realized that the Constitution’s new treaty process. … could preserve U.S. territorial aspirations, while safeguarding dangerous martial tribes from state interference as they [the states?] decided whether or not to join the new American Union.”

What Mr. Hutchins fails to acknowledge in the previous sentence is the fact that treaties are made between two or more nations, and that when the United States made treaties with Indian nations, it thereby recognized them as such. It is this Indian nationhood paradigm – which begins with Indian nations being originally free of both state and federal regulation – that Mr. Hutchins has set out to attack in his essay.

Fortunately, the anti-Indian paradigm is contradicted by the federal government’s historic application of Article VI of the U.S. Constitution to Indian nations. Article VI states in part: “all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land.” This Article exists “within the parameters” of the U.S. Constitution, and, on the basis of that Article, the pre-European sovereignty of Indian nations has been formally recognized by the United States government.

Indian nations on this continent existed for thousands of years completely free and independent of Christian Europeans.

According to Mr. Hutchins, “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 above sentence reveals confused thinking. The point which is historically irrefutable is this: Indian nations on this continent existed for thousands of years completely free and independent of Christian Europeans. When the monarchies of Christendom claimed to have “discovered” lands uninhabited by “Christians,” some of them, such as Spain, also claimed to have the right to assume themselves to be royal Christian “Sovereigns” on the continent, divinely entitled to assume control of the non-Christian lands said to have been “discovered,” and over the originally free and independent nations living here.

The point is not that Indian nations have been “in effect grandfathered into the American Constitution.” Rather, despite the doctrine of Christian discovery, by means of treaties and other agreements, the United States government has formally recognized the separate political existence of originally free and independent Indian nations. To assume that originally free Indian nations ought to now exist “under state and federal authority” because of a supposed Christian discovery of non-Christian lands is beyond ludicrous, even if it is disguised in rhetoric of “equal rights.”

Steven Newcomb is indigenous law research coordinator in the education department of the Sycuan Band of the Kumeyaay Nation and author of “Pagans in the Promised Land: Decoding the Doctrine of Christian Discovery” (2008, Fulcrum).