Deloria Vine - Tribes, Treaties, and Constitutional Tribulations

TRIBES, TREATIES, AND CONSTITUTIONAL TRIBULATIONS

VINE DELORIA JR. & DAVID E. WILKINS

TRIBES, TREATIES, AND CONSTITUTIONAL TRIBULATIONS

UNIVERSITY OF TEXAS PRESS, AUSTIN

A portion of this work was previously published as The Application of the Constitution to American Indians in Exiled in the Land of the Free. Clear Light Publishers: Santa Fe, New Mexico, 1992.

Copyright 1999 by the University of Texas Press
All rights reserved
Printed in the United States of America
Third paperback printing, 2005

Requests for permission to reproduce material from this work should be sent to Permissions, University of Texas Press, P.O. Box 7819, Austin, TX 78713-7819. utpress.utexas.edu/about/book-permissions

Library of Congress Cataloging-in-Publication Data

Deloria, Vine.
Tribes, treaties, and constitutional tribulations / by Vine Deloria, Jr. and David E. Wilkins. 1st ed.
p. cm.
Includes bibliographical references and index.

ISBN 0-292-71608-7 (pbk. : alk. paper)
1. Indians of North AmericaCivil rightsUnited StatesHistory. 2. Indians of North AmericaLegal status, laws, etc.United StatesHistory. 3. Constitutional historyUnited States.
I. Wilkins, David E. (David Eugene), 1954 . II. Title.
KF8210.C5D45 1999
342.730872dc21 99-26402

ISBN 978-0-292-74923-8 (library e-book)
ISBN 978-0-292-78945-6 (individual e-book)

INTRODUCTION

Almost every known human society bases its beliefs and institutions upon historical precedents, seeking to remain within the boundaries originally established by its founding ancestral line. Nevertheless, in the course of national existence human memory fades and mythological interpretations of the beginnings of human society take hold in the popular imagination. Eventually the past, in spite of all efforts to the contrary, becomes idealized in our view of national origins, and the hard facts of history, in particular those incidents and activities of which a nation is not proud, become deeply buried in the national psyche. Present views of reality are believed to have always prevailed, and bringing a corrective viewpoint to prominence is seen as disruptive and often heretical, as if the past existed only to reflect current prejudices.

So it is with American Indian nations and the U.S. Constitution. Today, when the idea and ideal of equality and the vision of homogeneity is popular and acceptable, many people assume that the Constitution provides ample direction for the solution of all social problems. Indian tribes in this view are simply another racial/ethnic minoritythe original proprietors of the continent, but not qualitatively, legally, or politically any different than other racial/ethnic groups who have suffered various and continuing measures of discrimination in their effort to gain full citizenship status.

When confronted with the constitutional clauses that seem to distinguish tribal nations from other identifiable racial/ethnic groups, many people remark politely, if naively, that while the Constitution does indeed mention Indian tribesthought to have retained. The best thing for tribal members to do, for those who support this logic, is to accept their present status as American citizens and work to make American society a better place in which to live.

These same people would not, under any circumstances, suggest that the progress in human rights and economic benefits that the majority has made over the past two centuries, due primarily to an expansive interpretation of the same constitutional clauses, be reduced, negated, or eliminated. Indeed, their tempers rise whenever someone suggests the unconstitutional basis for social security, federal insurance of home mortgages, or any of the benefits that have been made available through the liberal and contemporary interpretation of obscure constitutional wordings.

American Indians, therefore, face the worst of all possible situations when they attempt to clarify their status and rights. People who would grant great flexibility in determining the meaning of the commerce clause when applied to their own welfare find it incomprehensible when Indians expect the same pattern of interpretation of the same words when applied to their lands, their treaties, and their rights to self-government and the separate national existence this clause suggests. Even the most sympathetic non-Indians cringe at the thought of a coherent and consistent interpretation of Indian rights. They know, of course, that American history is replete with instances in which the Constitution and laws of the United Statesand the three branches of the federal government that are charged with upholding the Constitution and drafting, implementing, and interpreting lawshave utterly failed to do justice to American Indian nations.

When we examine the relationship of American Indians as individuals and as tribal nations in their collective capacity to the Constitution, and subsequently to the U.S. government, we discover two basic avenues for discussion. We can pore over the constitutional debates, examine the correspondence of the founding fathers, review the arguments of The Federalist Papers, and investigate the activities of the first few congresses to determine what the Constitution originally meant when applied to American Indians. What, we ask ourselves, did the founding fathers intend the relationship with American Indian tribes to be? And how far toward or from that desired result has American history taken us? Such studies are useful in providing a context within which the constitutional relationship with Indian tribes can be examined and understood, but to be able to infer from what we gather, it is unrealistic to assume foresight on the part of the founding fathers that can provide us with answers to todays problems. To reach intelligible conclusions, we would have to vest Washington, Jefferson, and others with prophetic powers that would do Nostradamos proud. We may uncover some principles of congressional intent of constitutional interpretation, but we cannot use these ideas to make sense of what consequently happened or to clarify the status and rights of Indians today.

The other avenue of approach is to study the ways in which the Constitution has been appliedor not appliedto American Indians as individuals and to the lands, treaties, and rights of Indian tribes as separate sovereign nations. This method combines legal and political theories with the events and incidents of our history. Its basic value is that it can be used not only to demonstrate the unfolding of constitutional ideas over a long period of time, identifying the process of erosion of the status of the tribes within the constitutional framework, but also clarify the shorter periods of time within which the necessities of history forced novel applications of constitutional principles as the only immediate solution to pressing intergovernmental problems involving tribes, states, and the federal government.

This book will concentrate on the manner and circumstances under which the Constitution of the United States was applied to American Indiansin both their individual and collective capacitiesand to their lands, treaties, and rights; it will concentrate on the ways in which Indian peoples were often excluded from the just application of constitutional principles, particularly when they were excluded from the protections offered by the Constitution. In directing our attention to the specific incidents that mark this avenue of discussion, we will come to see that a massive corrective effort is needed to bring forward the misapplications and omissions of American history so that we can create a coherent and consistent interpretation of the relationship of tribal nations to the U.S. government (and the constituent states) and to the Constitution. Existing federal Indian lawthat congeries of treaties, agreements, statutes, court cases, administrative regulations, etceteraalthough assumed to be a logical unity, will more accurately be seen as a terribly fragile edifice, held together more by the historical and geographical circumstances of American Indians in their relation and proximity to western peoples, institutions, and rules than by any consistent or logical principles of jurisprudence that all Anglo-Saxon law is presumed to possess.