Ann Tweedy on Indian Self-Defense and the Second Amendment

From the crit:

Ann E. Tweedy

“[H]OSTILE INDIAN TRIBES . . . OUTLAWS, WOLVES . . . BEARS . . . GRIZZLIES AND THINGS LIKE THAT?” HOW THE SECOND AMENDMENT AND SUPREME COURT PRECEDENT TARGET TRIBAL SELF-DEFENSE

Here is the introduction:

This article examines the history of self-defense in America, including the right to bear arms, as related to Indian tribes, in order to shed light on how the construction of history affects tribes today. As shown below, Indians are the original caricatured “savage” enemy that white Americans believed they needed militias and arms to defend themselves from. Since the early days, others have ably documented that the perceived enemies have multiplied to include African-Americans, immigrants, and the lower classes. But this has not meant that Indians have been let off the hook. Instead, they not only remain saddled with whites’ nightmare images of their savagery, but they continue to be punished for the popular perception of them in very concrete ways. Specifically, they are repeatedly and increasingly denied the right to govern on grounds of their untrustworthiness, and it is entirely possible that the lawlessness on Indian reservations has continued as a result of this very racialization.
This article first examines evidence that the historical meaning of self-defense in America (including that of the Second Amendment) was predicated largely on the premise that European, especially English, colonists needed to defend themselves against “savage” Indians. The article then argues that the cultural myth of white America’s need to defend itself against Indians obscures the fact that Indians who engaged in armed conflicts with the United States or the colonies were, in many instances, actually defending themselves and their homelands from white aggression and encroachment on the lands they owned and had been using for centuries.
The article next argues that this self-defense mythology and the oppressive history that it obscures have had important historical consequences for tribes and continue to have concrete consequences for tribes today. These continuing consequences are largely due to the fact that tribes today continue to be viewed as “savage” in the popular imagination and by Supreme Court Justices. The article further argues that such consequences can be understood as a deprivation of the right to self-defense in a figurative sense.
More specifically, as scholars such as Robert Williams have documented, the Supreme Court implicitly relies on this racialized characterization to deny tribes their sovereign powers. Thus, despite the fact that federal and state governments no longer have statutes and rules in place that deny Indians the right to carry guns, because tribes continue to be punished for their past efforts to defend themselves, in a very real sense Indians today lack the right to self-defense. Furthermore, the Supreme Court’s continual abrogation of tribal sovereign rights render tribes and the individuals living on reservations, both Indian and non-Indian, virtually defenseless against everything from predatory lending to violent crime. As a result, the depictions of tribes as savages are depriving tribes and Indians of their right to self-defense in a figurative sense on a macroscopic level. Additionally, America’s cultural understanding of tribes as warlike savages who perpetrated aggressions on innocent white colonists may well be working to subconsciously motivate the federal government to turn a blind eye to the horrific levels of violent crime that plague Indian reservations in the United States.
This article concludes that, as a nation, we must make an honest attempt to reckon with this checkered history and that, ultimately, we need to reevaluate both key Indian law precedent and the right to self-defense embodied in the Second Amendment. At a minimum, Indians’ and tribes’ constitutional rights must be protected prospectively, both in the context of self-defense as traditionally understood and more widely. Moreover, limitations on tribal jurisdiction are, in many cases, grounded on notions of savagery and should be regarded as inherently suspect. Finally, as a society, we must question all of our assumptions about tribes and Indians.

Article on Tribes and Self-Defense

For anyone who’s interested, my article, “‘Hostile Indian Tribes . . . Outlaws, Wolves, . . . Bears . . . Grizzlies and Things Like That?’ How the Second Amendment and Supreme Court Precedent Target Tribal Self-Defense,” recently came out in the University of Pennsylvania Journal of Constitutional Law and is now available on Westlaw and Lexis. It examines the legal history of tribes’ and Indians’ right to self-defense (or lack thereof) and right to bear arms and argues that tribes are still being punished for past acts of self-defense.

Ann Tweedy on Indian People and the Right to Self-Defense

Ann Tweedy has posted “How the Tentacles of America’s Racialized History Eviscerate Indian Tribes’ Right to Self-Defense” on SSRN. Here is the abstract:

This article looks at tribal actions of defending their homelands in colonial and early American history and argues that their actions in self-defense were popularly perceived as acts of aggression, which in turn led to their being defined as ignoble savages in caselaw and in society generally. This imputation of savagery continues to harm tribes because, as the scholar Robert Williams has argued, the cases defining them as “savages” and denigrating their sovereign rights are still cited to support abrogations of tribal sovereignty. Thus, although the language of savagery usually is not itself cited, the cases, and the racialized ideas that they embody, which can be traced to tribes’ early acts of self-defense, continue to be used against tribes.

The article first examines historical evidence of tribes engaging in acts of self-defense in order to expose the fallacy of the portrayal of tribes as savages. It then examines the use of the imagery of savagism in Supreme Court and other caselaw and discusses recent cases that rely on the earlier cases containing this imagery and that abrogate tribal rights. The goal is to expose the popular understanding of tribal roles in early American history as erroneous and thereby reveal the baselessness of the language of savagery. This, in turn, brings to light the injustice of continuing to rely on cases that portray tribes as savages. Once this racism comes to be more widely understood and these racialized precedents are rejected, the older cases will no longer be used in contemporary opinions to deprive tribes of their remaining sovereign rights. Thus, tribes will no longer be punished for past acts of self-defense.

I’ve had a chance to read an earlier draft of this paper. Very interesting!