American Indians and the Law

The small volume (bit over 200 pages) is about ten years old, but don't think much changed. It isn't comprehensive but is a good thumbnail intro to an area of the law I wish to know more about. The complexities of the law now include the power of a tribe to prosecute another Indian (including of a different tribe) but not non-Indian (a key case involved an attack of a tribal police officer). Book is a bit one-sided; figure there is a "dark side" on their end too. But, worthwhile overall.

One idea floated recently was representation in the U.S. Senate; total tribal population is more than many states.  There was some talk about the Cherokee Nation sending a (non-voting) delegate to the House (akin to Puerto Rico) pursuant to treaty rights.  The article notes the tribe has over four hundred enrolled members, a sizable fraction of the 6.8 million Native American population (by one count).  There are over five hundred tribes, but only a few have a sizable population (see a 2000 chart here, with only a handful over 100K).  Some unified grouping would seem most practical here, especially to handle prosecutions etc.

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.

The U.S. Constitution is fairly thin when it comes to Native American law, the Census Clause referenced counting Indians taxed and Indians a separate category in the Commerce Clause. Toss in the Treaty Clause (again suggesting they are in some fashion independent sovereigns, different from states), that is about it.  The power of naturalization allowed Congress to later make them all American citizens (raising some interesting questions: the Bill of Rights were not applied to tribes though a statutory law incorporated many of them, not including the Establishment Clause, Second Amendment or the right to counsel ... also the "dual sovereigns" principle applies for double jeopardy purposes).  Seems limited overall.

But, as the book notes, the tribes come off less well than the sovereign implications of the text suggests.  Early on, it was accepted that they were junior level sovereigns since they were part of the U.S. -- so they couldn't negotiate with foreign powers or alienate their land.  Then, shortly after the Civil War, Congress decided simply to stop negotiating treaties.  Still, Congress claimed broad power over the tribes, including to pass general criminal law over them. The Commerce Clause in general has been stretched but not that much.  Justice Thomas has some reason to cry foul.  OTOH, he did go along with Seminole Tribe of Florida v. Florida, one of the dubious sovereign immunity cases that here interfered with congressional power over tribes.

The book discusses how Native American sovereignty is limited when it interferes with non-Native interests. Thus, over the years, much tribal lands was sold to non-Indians.  Tribes had some power to regulate here but less  so regarding the non-Indians themselves. Taxing non-Indians also is complicated.  A concern here is that the non-Indians do not make policy but if a person attacks a tribal member, e.g., the non-Indian is there by choice. Anyway, if tribes are given more authority, there might very well be a way to given permanent non-tribal residents some sort of political power.  Finally, for something like a right to counsel, if there is a concern that a tribe does not have the funds, there should be an ability to provide federal funding.  It seems dubious not to include that among the rights. The book does not go into detail there.

Federal law also in various ways respects the needs of tribal members such as the exemption in the civil rights law to allow tribes to have official religious ceremonies and provide exemptions (such as peyote) to general criminal laws. This respects the wrongs of history such as stopping "ghost dances" or denying parents the right to raise their children in tribal cultural traditions. The "dying Indian" concept (the idea tribes would eventually die off) is discussed.  Relatedly, a 1970s law addressed the policy of taking children away from tribes by giving tribes the preference in adoptions. This led to a dispute that occurred after the writing of the book.  The book also discusses a law honoring tribal human remains.  OTOH, cultural heritage is not always secured since something like a tribal trademark (Cleveland Indians) does not violate any recognized interest.

There are many issues that arise here with millions of people involved, including concerns about domestic violence and social welfare. Like the interests of territorial residents, though with more political power (they count as state citizens, so can vote for POTUS and members of Congress), they are a special constitutional community with a lot of historical baggage.