Tribes, Treaties, and Constitutional Tribulations (review)

Tribes, Treaties, and Constitutional Tribulations by Vine Deloria Jr. and David E. Wilkins. University of Texas Press, 1999

Felix Cohen once insisted on the importance of paying attention to Native American rights—for all of us. The degree of justice enjoyed by indigenous peoples, he reasoned, was the equivalent of a miner's canary in the realm of human rights because what happens to Indians in their political vulnerability can easily happen to the "rest of us." This book takes Cohen's warning seriously and poses this critical question: what does the Constitution look like from the standpoint of indigenous people, and what can that tell us more generally about justice and law in America? It will come as no surprise to those in Native American studies that the Constitution turns out in this book to be—from an indigenous standpoint—somewhat less protective of human rights than commonly advertised. But there is much more to be learned in this careful legal and historical analysis by Deloria and Wilkins, the two foremost critical scholars of federal Indian law.

To begin with, the very phrase "federal Indian law" is itself more a wishful exaggeration than a description of any coherent or logical body of law based on constitutionally derived powers of government. "[S]tripped of the hypocritical veneer given to it by law professors," federal Indian law "has become a hodge-podge of personal grudges, ad-hoc policies, inconsistent judicial decisions, and a general exercise of ignorance about Indians, framed in statutory language" (33-34). How did this situation come about?

Deloria and Wilkins explain that in its infancy, the United States had no choice but to respect the independent nation status—which is to say, the right to self-determination—of the indigenous peoples it came into contact with. Notwithstanding the refusal of the United States to recognize clear Indian title to the soil and the racist assumption of Euro-American "superiority," survival of the young nation required making allies of Indian peoples who might otherwise side with England or pose a military threat themselves to the republic. And this goal, in turn, necessitated giving indigenous sovereignty its due in negotiating treaties of peace and friendship with the Indian nations. The federal government was in no position to make presumptions about having jurisdiction over the internal affairs of Indian nations or about exercising its governing powers over Indian people. The treaties were based on fundamentally sound principles of international law—mutual recognition of sovereignty. They were also based on powers given to Congress in the Constitution: regarding Indians, the Commerce Clause grants Congress only the power "to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." Making treaties would be consistent with this power broadly construed; intruding into the internal affairs of Indian nations or the personal lives of Indian people would not. Treaty making and legal recognition of Indian sovereignty, in Deloria and Wilkins's estimation, could have served as a permanent and perfectly sound legal and policy basis for government relations with Indians. But that was not to be.

With the historical passing of the strategic threat posed by Indian nations, the sound principles of treaty-based relations were eroded by various interest blocs within and without the federal government. One telling example of this was the 1871 enactment by Congress of an end to treaty making with the tribes. Another was the 1903 Supreme Court Lone Wolf decision that held Congress could unilaterally break the terms of treaties with the tribes. Both of these actions were beyond the legitimate powers of Congress or the courts as laid out in the Constitution. These actions created new governmental powers over Indians that were extraconstitutional, indeed, arguably unconstitutional. Were Indian nations still a serious strategic threat to the United States—as they had been at the time the treaties were negotiated—or otherwise a...