Federal Indian Law Is Really Anti-Indian Law
Walter R. Echo-Hawk, in a September 2, 2013, op-ed column for the Bangor Daily News, pointed to what he called "a humanitarian crisis in the five native communities within [the state of] Maine." He wrote that this crisis is a result of "the 19th-century law of colonialism including doctrines of conquest, discovery, plenary power, unfettered guardianship and race [that] defines indigenous rights within the United States."
Strangely, however, his critique of federal Indian law was coupled with a paean to the "founding principles that make human rights the core of [United States] governance."
How is it that human rights are missing in federal Indian law if these rights are built into the foundation of U.S. governance? Put differently, if the U.S. system is premised on human rights, then how is it these human rights are missing from U.S. federal Indian law? How is it possible for a government to be “founded on human rights principles” and at the same time enact an entire system of law that violates those principles as the U.S. has done with federal Indian law?
It seems that something is awry in Echo-Hawk's analysis. If he is right about federal Indian law being premised on the law of colonialism then he is wrong about the foundation of the U.S. system of government. An important clue to figuring out what's wrong is another statement he made, "We are rightfully proud of our Constitution that articulates and protects those [human] rights."
From my studies of federal Indian law, I have no doubt that Echo-Hawk's description is correct on that point: federal Indian law is indeed premised on theories of domination that subordinate Indian peoples and nations in a variety of ways. His analysis goes astray when he refers to "our Constitution."
The simplest way to see where Echo-Hawk goes wrong is to recall that the "we the people" that opens the preamble to the U.S. Constitution does not include Native peoples. In fact, the U.S. Supreme Court has ruled more than once that Indian nations were not included in the Constitution. The court says that is why Indian nations have sovereign immunity against the states.
Justice Kennedy wrote in the case of Idaho v. Coeur d'Alene Tribe of Idaho (1997), "the plan of the Convention [i.e., Constitution] did not surrender Indian tribes' immunity for the benefit of the States." This ruling cites Blatchford v. Native Village of Noatak and Circle Village (1991), where the Court held, "it would be absurd to suggest that the tribes surrendered immunity in a convention to which they were not even parties."
Thus, when Echo-Hawk says, "we are proud of our Constitution," not only is he technically wrong—Indians are not part of the Constitution—but he is endangering the sovereignty of Indian nations! If Indian nations had been parties to the Constitution, the Supreme Court would allow them to be sued by states in federal court.
Federal Indian law really ought to be called federal anti-Indian law. All the doctrines Echo-Hawk refers to—conquest, discovery, plenary power, guardianship and race—are based on and aimed at subordination and domination. This was stated directly in the Supreme Court case that started the system: Johnson v. McIntosh (1823), where Justice John Marshall built a framework for treating Indian peoples as politically and legally less than the "Christian discoverers" who colonized Indian lands.
This claim of federal power over Indian nations was reaffirmed in 1955 in the case of Tee-Hit-Ton Indians v. United States, where the Supreme Court ruled that Indians have no title to their ancestral lands. The U.S. Department of Justice asked the court to make this ruling on the basis of the "the principle of discovery," arguing that the U.S. has "complete and exclusive title to the land—subject only to a right of occupancy in the Indians, such right being retained by the Indians only by the grace of the sovereign."
This basic federal Indian law principle of domination persists today. It becomes obvious why there is "a humanitarian crisis" among Native peoples whose lands are surrounded by the state of Maine: the state is relying on the same basic principle that denies Indians can own their own lands.
In the face of all this, Echo-Hawk apparently thinks there is some value in pretending that the Constitution includes Indians, on the grounds that it is a "humanitarian" document. But that is just another pretense. The Constitution condoned slavery and benefitted slave states by counting slaves as three-fifths of a person to determine slave states' representation in Congress. So much for the Constitution "articulating and protecting" human rights.
Moreover, if Echo-Hawk succeeded in putting Indians under the Constitution, he would remove the basis for their sovereign immunity against states. That is a dangerous proposition that would increase the subordination of Indians to the colonizer's legal system.
The real meat of Echo-Hawk's op-ed column is his praise for the decision of the Maine Indian Tribal-State Commission, an inter-governmental entity composed of Indian and State representatives, to approach the United Nations Special Rapporteur on the Rights of Indigenous Peoples. The Commission submitted a massive filing of evidence showing the crisis affecting Indian peoples under the Maine Indian Claims Settlement Act and the Maine Implementing Act.
Echo-Hawk says the Commission made the right move because the UN "has recognized and articulated a human rights framework as the foundation of its dealings with indigenous peoples in the Declaration on the Rights of Indigenous Peoples." Here's where his argument gets sticky again.
The U.S. State Department says that the "human rights framework" of the UN Declaration does nothing more than is already done by the system of federal Indian law! If this interpretation prevails—and Echo-Hawk has not addressed it—there is no way Wabanaki peoples suffering under the Maine Indian Claims Settlement Act are going to solve their crisis through the Special Rapporteur.
The situation is a crisis embedded in a long history of attempted domination of Indigenous Peoples by colonizing states. To the extent that the dominating process continues —as we have seen it does in U.S. federal Indian law—the task for the UN Special Rapporteur is to separate the UN from the U.S. position and to argue that something really new is happening in international law, something that breaks fundamentally with the 500-plus years of colonialism.
This brings us to the last point: Echo-Hawk ends his op-ed column by saying the "current inequitable situation in our midst is an inherited problem that no one living created." In fact, there are many people living who perpetuate federal Indian law and continue to create the problem of domination inherited from prior generations. The doctrine of Christian discovery and all its hangers-on (plenary power, etc.) are actively argued and used throughout federal Indian law today.
The Wabanaki Peoples bringing their crisis to the UN are offering an opportunity for everyone alive today to look straight at the international system that sometimes calls itself "human rights" and to cleanse it of the domination that is rotting its core.
Peter d’Errico graduated from Yale Law School in 1968. He was Staff attorney in Dinebeiina Nahiilna Be Agaditahe Navajo Legal Services, 1968-1970, in Shiprock. He taught Legal Studies at the University of Massachusetts, Amherst, 1970-2002. He is a consulting attorney on indigenous issues.