N. Bruce Duthu: American Indians and the Law

I was a little put out with myself for taking so long to read Washburn’s Red Man’s Land, White Man’s Law. So I picked up a newer book, American Indians and the Law by N. Bruce Duthu. This book was published in 2008 as part of the Penguin Library of American Indian History. And I read it right after buying it.

American Indians and the Law left me confused about the state of Indian sovereignty. But I don’t think that Is Duthu’s fault. I think he accurately described the current situation. While the Congress and the Executive Branch over the last twenty years have been doing much to recognize and respect sovereignty, the Supreme Court has been handing down decisions eroding sovereignty. The result is that Duthu describes a very unsettled and confusing legal situation.

Unlike other minority groups, Native American’s are given a special status in the US Constitution. Their tribes are recognized as sovereign entities. The Constitution grants Congress the power to “regulate Commerce … with the Indian Tribes”. A key point, one reinforced by the Supreme Court under John Marshall in the early 19th Century, is that individual states do not have authority to regulate or deal with Indian tribes.

As sovereign entities, Tribal governments hold a status similar to State governments. They are subordinated to the Federal government in matters of international relations, and inter-governmental relations. But they historically have not been given the same respect as State governments.

It is routinely accepted that a State can enforce its laws on citizens of another state. If I am caught speeding in Texas, I can expect to pay a fine even though I am a full voting citizen of Oklahoma. Not so with Indian governments. Generally the Supreme Court only allows a tribe to enforce its criminal laws on members of the tribe.

The situation is fuzzier with civil actions. In general, Tribal courts have been denied jurisdiction involving commercial matters. On the other hand, they have generally been granted jurisdiction when enforcing their environmental laws and regulations. Duthu believes that this is because society has given Native American’s a special image (perhaps well deserved) reflecting respect for nature.

Duthu believes that there are two main causes for the Supreme Court’s eroding of tribal sovereignty. First is what he calls “A preferred creation story about nation building”. His theory is that George Washington, Chief Justice John Marshall, and other founding fathers believed that Indians were a savage, primitive and dying race. Their belief system encouraged replacing the dying race with Western legal systems, philosophy, religion, and social structure. Duthu sees a problem. Although the Indian culture has not died out, the current Supreme Court is acting like it should have. The second cause according to Duthu is a persistent strain of racism.

There is no doubt that American Indians and the Law helps expose the issues related to Indian tribes as sovereign nations. Most of non-native America is completely oblivious to the whole issue. Even after living in close proximity to numerous Indian nations in Oklahoma for the last 34 years, I can’t say that I understood anything about their governments. So Duthu’s book has done much to awaken me. The confusion I still feel is much more associated with the legal ambiguities, than with Duthu’s writing.