U.S. Law and Native American Rights in Action – A Law Professor and Activist's View

Abstract

I think it’s fair to say that we as Native American peoples are subject to the same swings of the system as any other people, or any other sovereign, in America. I’m referring to swings like the grand political shifts between conservative and liberal, national rights to states’ rights, changes in federalism, and so forth. We are subject to those swings of the pendulum whether we like it or not. So some small part of the ups-and-downs we experience with law is justifiable, I think, because it is part of a general process that affects everyone. This requires us to sit down, educate ourselves (or get educated by others), understand it, use it to our advantage – and sometimes the law even plays along. Of course sometimes it doesn’t. Either way, it’s just a reality we have to deal with alongside everyone else. However, then there are some more specific theoretical and ideological lessons that American Indian peoples have to face when we are trying to work with American law. This can depend a lot on the particular situation at hand, and on the law involved. If we’re talking about “positive law” – laws that a particular state, or the federal government, has decided to reduce to writing – then these laws always embody value systems. Those values are often not ours, and the laws are not of our making. I think we almost always find that these kinds of laws are against our best interests. They always seem to be designed to do the work of those with power – the conqueror, the colonizer, the exploiter. We find, historically, that these kinds of laws are almost always designed to separate native peoples from their wealth. The General Allotment Act, for example, drawing lines in checkerboard fashion across Indian Country – was purportedly designed to provide a system of private property to individual Native Americans (U.S. Congress 1887). But native people already held private property, although it wasn’t in the kind of system that the U.S. government would recognize; instead, they did it their way. What is clear is that all the Allotment Act has done is to make the timber on those lands, and the oil and gas under them, more readily severable, subject to the trusteeship of the U.S. Bureau of Indian Affairs, and brought to market. In fact, we have seen that the result was indeed to make these resources more readily acquirable, by purchase or otherwise, by the state or by corporations or by outsiders who lived around the reservations. That is not to say that this was a concerted, completely well-planned system, but certainly the net result of positive law in the U.S. has been to separate native peoples from our wealth. On another level, it is also clear that formal law in the United States has been designed to separate Indian peoples from our cultures and our identities, perhaps starting with the use of the word “Indian.” The system that required native children to go away to boarding school obviously had this effect. So too did the system whereby Indian Country was divided up among various Christian denominations, permitting them to go forth and missionize natives – Methodists in this part of the Country, Catholics in that part of the Country – all designed to separate us from our cultures. We find telling examples of this kind of effort in the Indian Reorganization Act; even the name “Reorganization” tells us a lot in that regard. This Act came out of a time, in 1934, when Congress was dealing with reorganizing corporations that were going bankrupt in a way and at a rate that the U.S. had never experienced. So, on the one hand legal models were floating around for reorganizing corporations in the context of bankruptcy. Out of that we got the Indian Reorganization Act, which treated us all as if we were corporations – with a governance structure much like a corporation, instead of having a structure like a government. A model of government, we would think, should be more democratic, more deliberative, and more transparent. Instead we received these creatures, created on Indian reservations by the force of federal law, that are not transparent. They hold proprietary information; they act and talk and walk like private corporations; and of course these, too, are ideas that separated Indians from their wealth and from their cultures and from their identities.