- American Indians and the Law
N. Bruce Duthu's American Indians and the Law clearly and concisely lays out the critical political and legal issues that face tribal nations as they seek to exercise inherent powers of self-government. Through the lens of law and policy, Duthu interrogates the history of the United States' relations with tribal nations to identify the broader context that gave rise to contemporary legal disputes in Indian country. Duthu succeeds in his aim to "show how federal Indian law reflects the paradoxes and tensions of our past but also contains the critical elements that could be useful in developing a more respectful and mutually beneficial framework for political relations" (xxv).
Broken into four parts, Part One examines the political status of tribal nations laid out in the U.S. Constitution and expressed by Chief Justice John Marshal in Worcester v. Georgia. Duthu extends his analysis beyond judicial opinion in Chapter Two to illuminate the inherent contradictions that exist between congressional policies and the court, focusing on 1978 as a watershed year in Indian law. A critical contribution to the study of law and policy, Duthu illustrates how the court placed fundamental limitations on tribes' ability to exercise their sovereignty; limitations that significantly diverged from the policies and practices of Congress and the executive branch. These limitations, as illustrated in [End Page 276] Chapter Three, created significant challenges for tribes, notably in the areas of civil and regulatory jurisdiction.
Part Two examines the legal spaces of indigenous ancestral homelands. Again, the legal manipulations of Indian title are placed in their proper historical contexts as Duthu examines how Christianity and the prevailing rhetoric of Indians as "savages" shaped the legal contours of Indian country today. He follows this analysis of European notions of discovery and congressional plenary authority with an examination of the fundamental differences between Indian and Western philosophies regarding the environment. Highlighting tribal perspectives of the natural world, Duthu reveals how the recognition of tribal sovereignty can advance both tribal and federal interests. He concludes this section with an examination of how congress and the courts have responded to tribal economic development.
Duthu, with astute clarity, weaves through the murky waters of federal Indian law. A critical and timely contribution to the study of law, in Part Three Duthu examines the complex issues that face tribal governments as they seek to balance broader communal interests with individual rights of personal autonomy. Through case studies on the rights to life and abortion, marriage and two-spirited peoples, Indian Child Welfare, and tribal citizenship, Duthu gets to the heart of the moral issues that surround the law, whether tribal or federal. He then turns his attention to the ideological and institutional forces that have hampered tribal-federal relations as the courts have insisted on forwarding a national creation story that is latent with racism.
Refreshingly, Duthu concludes with genuine insight into how political coexistence can be achieved, calling on advocates of tribal sovereignty to blend the knowledge of the past with the conditions of the present to develop productive and respectful relations among tribes, the states, and the federal government.