NCJ Number
65659
Journal
JOURNAL OF PUBLIC LAW Volume: 18 Dated: (1969) Pages: 311-338
Date Published
1969
Length
28 pages
Annotation
THE INTRICACY AND CONFUSION REGARDING THE RIGHTFUL PLACE OF THE AMERICAN INDIAN IN SOCIETY IS A CONSEQUENCE OF THE JUDICIAL AND POLITICAL MYTH OF TRIBAL SOVEREIGNTY AND FEDERAL POLICY.
Abstract
THE AMERICAN TRIBAL INDIAN CAN BE DESCRIBED NOT ONLY AS A MEMBER OF AMERICA'S LARGEST NEGLECTED MINORITY BUT ALSO AS A VICTIM OF TOO MANY LAWS RATHER THAN TOO FEW. IN CONSTITUTIONAL THEORY, TRIBAL INDIANS ARE DEPENDENT SOVEREIGN NATIONS; IN REALITY THEY ARE BEST CATEGORIZED AS WARDS OF THE FEDERAL GOVERNMENT. BOTH CONGRESS AND THE U.S. SUPREME COURT HAVE PLAYED LEADING ROLES IN CONTRIBUTING TO THE LABYRINTH OF THE CONSTITUTIONAL STATUS OF THE TRIBAL INDIAN. UNTIL THE 1850'S, IT WAS HOPED THAT INDIANS COULD PRACTICE SELF-GOVERNMENT, BUT THEIR LOSS OF AUTONOMY CLOSELY PARALLELED THE WESTWARD MOVEMENT TO THE FRONTIER. RESERVATIONS WERE ESTABLISHED TO PROTECT INDIANS TEMPORARILY DURING THE PERIOD IN WHICH THEY WOULD BECOME ACCULTURATED TO THE WHITE MAN'S SOCIETY. MAJOR PROBLEMS AROSE, HOWEVER, REGARDING LAND OWNERSHIP AND POLITICS ON THE RESERVATIONS. IN GENERAL, THE RIGHTS AND PRIVILEGES OF RESERVATION INDIANS ARE DEFINED BY TRIBAL LAWS AND ARE ENFORCED BY TRIBAL COURTS OR INDIAN TRIBUNALS. IN MANY CASES, CONSTITUTIONAL RIGHTS ARE DENIED UNDER THE SYSTEM BECAUSE OF INDIAN JUDGES' LACK OF TRAINING AND FAMILIARITY WITH THE AMERICAN LEGAL SYSTEM AND THE FAILURE OF STATES WHICH ASSUMED JURISDICTION OF INDIANS TO ENFORCE THE LAW ON RESERVATIONS. IN ADDITION, INSENSITIVITY TO INDIAN 'NATIONHOOD' IS ILLUSTRATED BY NUMEROUS FEDERAL LAWS WHICH SUBVERT PROVISIONS OF TREATIES WITH RESPECT TO LAND AND TAXES. THE FORCES OF ACCULTURATION ON THE RESERVATION SHOULD DETERMINE HOW FAST AND HOW MUCH OF THE BROADER CULTURE IS ADOPTED BY THE INDIANS. GOVERNMENT CANNOT LEGISLATE INDIANS INTO BECOMING WHITE AMERICANS. FOOTNOTES ARE PROVIDED. (LWM)