veiled4allah: legal tidbits

As I mentioned in a previous post, one of the books that I got while on my vacation is "Indians in American History". This is really an excellent book and provides a good overview of the subject.

Two chapters that are of particular interest to me as a paralegal-in-training are "Indian Tribes and the American Constitution" and "The Struggle for Indian Civil Rights".

The chapter on Indian tribes and the Constitution is by Charles F. Wilkinson, who is a professor of Law at the University of Colorado. After reviewing the mentions of Indian tribes in the Constitution itself, he discusses the so-called Marshall Trilogy, three rulings by early Supreme Court Chief Justice John Marshall in regard to the status of Indian tribes (Johnson v. McIntosh, 8 Wheat. 543 (1823); Cherokee Nation v. Georgia, 30 U.S. 1 (1831); and Worcester v. Georgia, 31 U.S. 515 (1832) for those who are interested). This leads into a discussion of the interplay of federal, state, and tribal sovereignty and laws. Following this, he examines the questions of due process and equal protection. This is where it really gets interesting.

Here are two passages that I thought were of particular note:

In 1968 Congress passed the Indian Civil Rights Act (ICRA) which applied many of the provisions of the Bill of Rights and the Fourteenth Amendment to Indian tribes. But rights under the Indian Civil Rights Act differ in several respects from constitutional rights of citizens outside of Indian country. The 1968 act, for example, does not prohibit the establishment of religion. Indian tribes, therefore, are the only governments in the United States that can legally operate as theocracies. Several Pueblos in the Southwest are just that, while other tribes across the country combine republican and theocratic forms of government by having some tribal council members chosen by election and some seats on their councils filled by hereditary chiefs (p. 115)

The second passage is even more interesting:

Yet these Indian governments, whose leaders are elected by a racially-defined electorate, are outside of the system of constitutional restraints. This race-based governmental system has been upheld by the Supreme Court, which has gone to considerable lengths to find that tribal governments are not in fact race-based. The Court has concluded that political ties were established, by treaty or treaty substitutes, between the United States and tribal governments. This government-to-government relationship means that Indian tribes are recognized under federal law as political and governmental, not racial, entities and that there is no equal protection violation. There is another context in which Indian law and policy energizes analysis of civil liberties issues. In 1954, Brown v. Board of Education rejected the "separate but equal" doctrine and struck down racial segregation in public schools. But Indian reservations are plainly racial enclaves where separatism prevails. On many reservations even the schools are effectively segregated.

This gives us a deeper insight into the antidiscrimination principle of the Constitution. Separatism for blacks was outlawed because it was forced upon them and because it demonstrably operated to their disadvantage. Indian separatism is allowable because Indians are separatists by choice, because most Indian leaders have voluntarily selected a measured separatism as the single best hope for the future of the Indian people. Without the Indian experience, we are led to believe that our Constitution outlaws separatism; with it, we learn that the essential prohibition is against a forced policy that wounds minorities. Numerous aspects of federal policy have wounded Indians, but separatism is not one of them; thus it does not offend the Constitution