My new article, “The Original Understanding of the Political Status of Indian Tribes,” published in the St. John’s Law Review is here.
Here’s the introduction:
Influential and formidable legal minds, including Justice Blackmun, Justice Stevens, and Judge Kozinski, have been among the federal and state court judges confronted with the dynamic and sizeable question of whether Indian law is a question of race law or a question of politics. These judges’ responses indicated that they were all but overwhelmed with the question. It is a rare occasion when federal courts are presented with the argument that statutes and regulations that create, for example, federal program preferences for Indian tribes or individual Indians, are unconstitutional under the Fifth or Fourteenth Amendments, but when they are confronted with this question, one typical response in denial of the argument is to assert that such an argument could mean the end of Title 25 of the United States Code. Implicit in this argument is that the judiciary would be stretching its authority and legitimacy by striking down such a vast body of law in one fell swoop. This response is indicative of how this area of constitutional and Indian law is superficially theorized. Sometimes, judges have no choice but to throw up their hands and resort to fairly weak statements relating to judicial authority.
The answer, unlike the answers to most federal Indian law questions, is relatively simple to understand. And, like so many Indian law questions, the answer lies in history, going back to the First Congress’s statement of Indian policy in the 1790 Trade and Intercourse Act and the very first major Indian law decision from the Supreme Court, Johnson v. M’Intosh. Johnson, for example, constitutionalized the rule that only the federal government could clear title to Indian land through “an exclusive right to extinguish the Indian title of occupancy, either by purchase or by conquest.” Congress had already exercised its Indian Commerce Clause power to ban the states from purchasing or acquiring Indian lands in the Trade and Intercourse Act. In short, every parcel of land divested by Indian tribes and individual Indians to American private and public property owners had to pass through the federal government’s hands. The question, for purposes of our discussion, about the political status of Indian tribes that the federal government had to answer was this: In what manner will the United States clear Indian title from lands occupied by Indian people? The answer, as the histories of Indian lands dispossession prove conclusively, is through purchase from–or conquest of–Indian tribes. The United States could have made a decision to clear Indian title through individual transactions with individual Indians, but chose instead to clear Indian title through political channels. What resulted were the origins of the political status of Indian tribes and their citizens, the Indian people.
This Article will demonstrate that virtually all elements of Indian affairs can be traced to the decision of the United States to recognize Indian tribes as political entities and to make Indian law and policy based on this political status.