Injustices of the Past and Present Against Indigenous Peoples

Many people who don't fully understand the history of the United States' interactions with Indigenous nations believe that while there once may have been abuses perpetrated against them, it was limited to a past that no longer exists.

Consequently, there is a sense that Indigenous peoples are stuck in a mode of self-pitying victimhood which they continue to try to exploit for various reasons. However, there are many ways that the injustices of the past are still realities for today's Indigenous people, making history relevant today. Even in the face of fairer policies of the last 40 or 50 years and numerous laws that are designed to correct past injustices, there are a myriad of ways that the past still works against Indigenous peoples, and this article covers just a few of the most harmful instances.

The Legal Realm

The legal basis of the U.S. relationship with tribal nations is rooted in the treaty relationship; the U.S. made approximately 800 treaties with tribes (with the U.S. refusing to ratify over 400 of them). Of those that were ratified, all of them were violated by the U.S. in sometimes extreme ways that resulted in massive land theft and the subjection of Indigenous peoples to the foreign power of American law. This was against the intent of the treaties, which are legal instruments that function to regulate agreements between sovereign nations. When tribes tried to seek justice in the American Supreme Court beginning in 1828, what they got instead were rulings that justified American domination and laid the groundwork for future domination and land theft through the power of Congress and the courts.

What resulted was the creation of what legal scholars have termed "legal myths." These myths are based on outdated, racist ideologies that considered Indigenous people to be an inferior form of human beings who needed to be "elevated" to Eurocentric norms of civilization. The best example of this is encoded in the doctrine of discovery, a cornerstone of federal Indian law today. Another one is the concept of domestic dependent nations, articulated as early as 1831 by Supreme Court Justice John Marshall in Cherokee Nation v. Georgia in which he argued that the relationship of tribes to the United States "resembles that of a ward to his guardian."

There are several other problematic legal concepts in federal Native American law, but perhaps the worst among them is the plenary power doctrine in which Congress presumes for itself, without consent of the tribes, that it has absolute power over Indigenous peoples and their resources.

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What Is the Doctrine of Discovery?

By Dina Gilio-Whitaker

The Trust Doctrine and Land Ownership

Legal scholars and experts have widely differing opinions about the origins of the trust doctrine and what it actually means, but that it has no basis in the Constitution is generally acknowledged. A liberal interpretation argues that the federal government has a legally enforceable fiduciary responsibility to act with the "most scrupulous good faith and candor" in its dealings with Indigenous tribes.

Conservative or "anti-trust" interpretations argue that the concept is not legally enforceable and, furthermore, that the federal government possesses the power to handle Indigenous affairs in whatever manner it sees fit, no matter how detrimental to tribes their actions may be. An example of how this has worked against tribes historically is in the gross mismanagement of tribal resources for over 100 years where a proper accounting of revenues generated from tribal lands was never conducted, leading to the Claims Resolution Act of 2010, more commonly known as the Cobell Settlement.

One legal reality Indigenous peoples face is that under the trust doctrine they don't actually hold title to their own lands. Instead, the federal government holds "aboriginal title" in trust on their behalf, a form of title that essentially only recognizes the Indigenous peoples' right of occupancy as opposed to full ownership rights in the same way a person owns title to land or property. Under an anti-trust interpretation of the trust doctrine, in addition to the reality of the plenary power doctrine of absolute Congressional power over Indigenous affairs, there still exists the very real possibility of further land and resource loss given a hostile enough political climate and the lack of political will to protect Indigenous lands and rights.

Social Issues

The gradual process of the United States' domination of Indigenous nations led to profound social disruptions that still plague tribal communities in the forms of poverty, substance abuse, alcohol abuse, disproportionately high health problems, substandard education, and substandard healthcare.

Under the trust relationship and based on the treaty history, the United States has assumed the responsibility for healthcare and education for Indigenous peoples. Despite the disruptions to tribes from past policies, especially assimilation and termination, Indigenous people must be able to prove their affiliation with tribal nations in order to benefit from government education and healthcare programs for members of Indigenous tribes. Bartolomé de Las Casas was one of the very first advocates for Indigenous rights, earning himself the nickname "Defender of the Native Americans." 

Blood Quantum and Identity

The federal government imposed criteria that classified Indigenous peoples based on their race, expressed in terms of fractions of Indigenous "blood quantum," rather than their political status as members or citizens of their tribal nations (in the same way American citizenship is determined, for example).

Although tribes are free to establish their own criteria for belonging, most still follow the blood quantum model initially forced on them. The federal government still uses the blood quantum criteria for many of their benefit programs for Indigenous peoples. As Indigenous peoples continue to intermarry between tribes and with people of other races, blood quantum within individual tribes continues to be lowered, resulting in what some scholars have termed "statistical genocide" or elimination.

Additionally, the federal government's past policies have caused Indigenous peoples to eliminate their political relationship with the U.S., leaving people who no longer are considered Indigenous because of the lack of federal recognition.

References

_{Inouye, Daniel. "Preface," Exiled in the Land of the Free: Democracy, Indian Nations, and the U.S. Constitution. Santa Fe: Clear Light Publishers, 1992.}

_{Wilkins and Lomawaima. Uneven Ground: American Indian Sovereignty and Federal Law. Norman: University of Oklahoma Press, 2001.}