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The Constructed World of Federal Indian Law

The aggregate of ideas commonly called “federal Indian law” involves matters of epistemology—or what Ernst Von Glasersfeld has termed, “how we acquire knowledge of reality, and how reliable and ‘true’ that knowledge might be.” In an essay entitled “An Introduction to Radical Constructivism,” Von Glasersfeld also noted that philosophers have “certainly disagreed in their views of what really exists, but their notion of truth was tied to the notion of objective validity.” (original emphasis)

A metaphysical realist, says Von Glasersfeld, “is one who insists that we may call something ‘true’ only if it corresponds to an independent ‘objective’ reality.” This has led to the presumption that “knowledge is knowledge only if it reflects the world as it is.” (Von Glasersfeld’s essay is found in The Invented Reality, ed. by Paul Watzlawick, 1984, New York: W.W. Norton).

A major misconception that underlies federal Indian law is the presumption that the ideas found in U.S. legal decisions about American Indians “reflect the world as it is,” or reflect what Chief Justice John Marshall referred to in Worcester v. Georgia as “the actual state of things.” The ideas now called federal Indian law are erroneously assumed to correspond to an independent "objective" reality, made up of “Indians,” “tribes,” “domestic dependent nations,” “plenary power,” “tribal sovereignty,” and so forth. These and many other mental concepts are commonly taken by the average person, and even by lawyers, as objectively real physical "facts" in the world. However, it is more accurate to say that the ideas that make up federal Indian law reflect a "world" that certain non-Indian minds have conceived or interpreted into existence.

The "reality" to be found in federal Indian law is not real in the sense that it is existing “out there” somewhere, independent of human thought. We are able to perceive "the world" of federal Indian as "a reality" because it has been produced by human thought and by the human imagination. For this is how it came into existence. When speaking most generally, we may say that it is a “human” produced world, but it is more precise to say that the "reality" of federal Indian law is a product of non-Indian thought and imagination. This is because the foundational concepts of the field, which are found in legal decisions still being used today, were produced by non-Indian men such as John Marshall, Joseph Story, and many other judges.

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Here’s one effect of all this: At an extremely young age, we as Indian people begin the process of conceiving ourselves in terms of non-Indian ideas, and, as a result, we end up with a distorted sense of identity. The extent to which we begin to internalize and identify with the non-Indian conceptions of “American Indians” (“tribes,” “tribal,” “domestic dependent nations,” and so forth) is the extent to which we tend to lose sight of our own conceptions of ourselves, or else never bother to develop our own conceptions of ourselves outside of the enclosing parameters of federal Indian law terminology and interpretations.

As part of a more comprehensive strategy, we need a heightened recognition of the fact that the non-Indian legal world of federal Indian "law" is largely a metaphoric world. The legal "world" of federal Indian law is a non-Indian mental work of art that is full of deception. It is a virtual and metaphoric reality not designed for our protection and benefit as Indian nations and peoples, but for the protection and benefit of the U.S. It is a reality made up of conceptual patterns designed to protect the United States from our true and rightful status as the original free nations of this continent that have been existing here thousands and thousands of years longer than the non-Indigenous political entity known as the United States of America. (Notably, there is a physical dimension to the thousands of years that our nations and peoples have existed on this continent that is not a product of metaphor or our imaginations).

For us, the metaphoric world of U.S. federal Indian law is “law” only to the extent that we as Indians consciously or unconsciously interpret it and accept it as such. Given that U.S. federal Indian law is explicitly founded upon bigoted patterns of thought such as “Christian discovery” and “pretentions” of “conquest”—and on U.S. assertions of authority over our nations without our permission or consent—it is a metaphoric “world” that ought to be considered invalid from our perspective and not deserving of the legitimizing title “law.”

Steven Newcomb (Shawnee/Lenape) is the co-founder and co-director of the Indigenous Law Institute, author of Pagans in the Promised Land: Decoding the Doctrine of Christian Discovery.