Understanding Indigenous Rights in the United States

I. INTRODUCTION

A. The need to better understand Native American issues.

B. Using an international frame of reference, I will provide a context for understanding Native American issues by:

1. Defining “indigenous peoples;”

2. Providing an analytical construct for understanding the rights, responsibilities, and relationships relating to indigenous peoples;

3. Providing an overview of indigenous rights and aspirations; and

4. Preliminary observations about the nature of Federal Indian law.

C.  Social and legal principles for crafting state laws affecting Native America will be presented, from the standpoint of an Indian law practitioner.

II. DEFINITION OF “INDIGENOUS PEOPLES”

A. The role colonialism (1492-1950) in dividing the Human Family.

B. Defining “indigenous peoples.”

C. Data about indigenous peoples in the world today.

1. Population

2. location

3. socio-economic indicators

4. relationships with dominant society

5. Major issues affecting indigenous people

III. AN ANALYTICAL CONSTRUCT: “SETTLERISM AND THE SETTLER STATE

A. Definitions

B. Characteristics and challenges of the settler state.

IV. OVERVIEW OF INDIGENOUS RIGHTS AND ASPIRATIONS

A. UN’s Draft Declaration on the Rights of Indigenous Peoples

V.  DOMESTIC FEDERAL INDIAN LAW—PRELIMINARY OBSERVATIONS

A. Definition of domestic “Federal Indian Law;” role of law in Indian Affairs.

B. Identifying principles of “colonialism” embedded in Federal Indian Law

1. The Marshall Trilogy

2. How American law has been used as a “sword” or “shield”

3. Is there is need for reform?   

VI. PRINCIPLES FOR CRAFTING STATE LAWS AFFECTING NATIVE AMERICA

            A. How shall lawmakers relate to a permanent minority?

1. Concepts: "Tyranny of the majority" & "liberty" (de Tocqueville, Mills)

                    2. What is the place of Native America in United States society?

            B. Early State hostility to Indian Nations.

1. Cherokee Nation v. Georgia, 30 U.S. 1 (1831)—anti-Indian laws.

2. Worcester v. Georgia, 31 U.S. 515 (1832)—reservations bar state law.

3. U.S. v. Kagama, 118 U.S. 375 (1886)—federal protection from states.

4. Williams v. Lee, 358 U.S. 217 (1959)—rules applied in modern context.

5. Areas of conflict during the modern era of Federal Indian law.

C.  The Plenary Power of Congress.

1. Lone Wolf v. Hitchcock, 187 U.S. 553 (1903)—a harsh case.

2. Lone Wolf pared back in the modern era of Federal Indian law.

3. Federal legislation in the Self-Determination Era (1970-present).

           D. Principles of political and social co-existence—State/Tribal Relations.

1. Sovereigns can co-exist in the same territory (Worcester revisited).

2. Tribal and state interests can co-exist (Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172 (1999)).

3. States can foster Native interests (Livingston v. Ewing, 601 F.2d 1110 (10th Cir. 1979)).

4. Some areas of cooperation and possible legislation:

a. Government-to-Government relations (consultation, cooperation, mutual assistance pacts).

b. Grave protection and repatriation;

c. Protection of sacred sites;

d. Prisoner rights, law enforcement, comity;

e. Historic preservation;

f. Gaming compacts;

g. Natural resources (fisheries, water rights settlements).

h. Economic development, etc.

E.  "From where the Sun now stands, let us fight no more forever." (to borrow from Chief Joseph).

APPENDICES:

  1. UN’s Draft Declaration on the Rights of Indigenous People

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Prepared and presented by Walter R. Echo-Hawk, Senior Staff Attorney, Native American Rights Fund for the 2007 Joint Professional Seminar, Sept. 10-12, Santa Fe, New Mexico.