Native Americans: Unseen In The Constitution

The United States Constitution has historically failed to protect the rights of Native Americans, despite ratified treaties and constitutional acknowledgment. Native Americans were not granted citizenship until 1924, and even then, they did not have full protection of their voting rights. The Dawes Act of 1887, which gave citizenship to Native Americans who accepted individual land grants, and the Indian Reorganization Act of 1934, which aimed to strengthen tribal governments, were attempts to assimilate Native Americans. Native nations have had to contend with threats to their political status and sovereignty due to Congressional plenary power, and their separate legal systems and worldviews have often been overlooked. While the Constitution mentions Native Americans three times, the language does not provide explicit constitutional recognition or protection for their rights.

Explore related products

The Worst Trickster Story Ever Told: Native America, the Supreme Court, and the U.S. Constitution

$22.1 $30

Constitution of the Iroquois Nations

$14.99

The White Earth Nation: Ratification of a Native Democratic Constitution

$9.12 $16

Exiled in the Land of the Free: Democracy, Indian Nations & the U.S. Constitution

$24.95

Native American Governments: From Tribal Councils to Constitutions (Native American Cultures)

$11.5

On the Drafting of Tribal Constitutions (Volume 1) (American Indian Law and Policy Series)

$16.79 $21.95

Native Americans and US citizenship

The United States Constitution does not explicitly mention Native Americans or Native American tribes, but it does refer to “Indians not taxed” in Article I, Section 2, Clause 3, and in Section 2 of the Fourteenth Amendment. The Fourteenth Amendment, ratified in 1870, clarified that the amendment did not impact the status of Native Americans, but that they were subject to the jurisdiction of the United States.

The US government has a long history of treaty-making with Native American tribes, recognising them as independent nations. The first treaty was signed with the Delaware Indians in 1783, and the Founding Fathers who signed the Constitution were familiar with Native nations, having negotiated treaties and engaged in diplomatic relations. Benjamin Franklin, for example, was closely involved with the Iroquois Confederacy and studied their systems of governance. The Iroquois Confederacy, along with other tribal governments, had democratic policies and guarded certain personal freedoms, including freedom of religion.

Despite this early recognition of tribal sovereignty, the US government began to arbitrarily assert plenary power over Indigenous governments, resources, and rights in the 1880s. This power could be exercised at any time to diminish or eliminate the political identities or proprietary rights of Native nations. The Indian Reorganization Act of 1934 was a New Deal initiative designed to strengthen tribal governments, and tribes that operate under these constitutions are called "IRA" tribes.

The Dawes Act of 1887 offered Native Americans US citizenship if they accepted individual land grants, and in 1924, all Native Americans were granted citizenship with the Indian Citizenship Act. However, this did not offer full protection of voting rights, and Native Americans faced barriers to voting until the Civil Rights Act of 1965.

Today, there are more than 500 tribal governments recognised by the US government, each operating according to its own constitutional rules. Tribal sovereignty is the concept of the inherent authority of Indigenous tribes to govern themselves within the US borders, and it is protected by the constitutional status of tribes. The Indian Education Act of 1972 established the Office of Indian Education and made federal funds available for Native American educational initiatives. While tribal governments have made significant strides in economic and political development, they still lack fundamental protections for political, property, and cultural rights.

Tribal sovereignty and self-governance

The concept of tribal sovereignty and self-governance for Native Americans has a long and complex history in the United States. When tribes first encountered Europeans, they were recognised as sovereign nations due to their significant population, control over natural resources, and established relations with foreign powers. This recognition of tribal sovereignty has been a fundamental aspect of the relationship between Native American tribes and the U.S. government.

Tribal sovereignty refers to the inherent power of tribal nations to govern themselves and make decisions regarding their property and citizens. Federally recognised tribes in the United States maintain their governmental status and the authority to determine their governance structures, laws, and citizenship. Tribal governments have the power to enforce their laws through police departments and tribal courts, and they exercise jurisdiction over criminal matters involving their members and issues within their territories.

However, the expansion of European settlement and the establishment of the United States led to a decline in tribal populations and a gradual erosion of tribal sovereignty. Today, tribal sovereignty is limited by treaties, acts of Congress, Executive Orders, federal administrative agreements, and court decisions. Despite these limitations, federally recognised tribes continue to protect and maintain their sovereignty against further encroachment by other sovereign entities, such as states.

The jurisdictional framework between Native American tribes, the federal government, and states has been a source of complexity, especially in criminal matters. Variables such as the type of crime, tribal membership of the victim and defendant, and land ownership come into play when determining which entity has criminal jurisdiction in cases involving Native Americans. Efforts have been made to strengthen tribal sovereignty and self-governance, such as amendments to laws and acts that affirm tribal jurisdiction and enhance their criminal sentencing authority.

The political status of Native American tribes remains a complex and evolving issue. While they strive to protect their sovereignty and self-governance, they also face challenges and vulnerabilities due to the exercise of Congressional plenary power and the lack of explicit constitutional presence. The pursuit of political independence and international recognition has been explored by some Native nations, highlighting their ongoing commitment to enhancing their sovereignty and self-determination.

Treaties and agreements with Native Americans

Treaties are formal, binding agreements between sovereign nations. Native American tribes made treaties with one another long before Europeans arrived in the Americas. Treaties between the US government and Native American tribes set out the duties and responsibilities that the federal government owes to a particular tribe. Treaties can cover issues such as land boundaries, hunting and fishing rights, and guarantees of peace.

From 1774 until about 1832, treaties between individual sovereign Native American nations and the United States were negotiated to establish borders and prescribe conditions of behaviour between the parties. The form of these agreements was nearly identical to the Treaty of Paris ending the Revolutionary War between the US and Great Britain. The negotiations ended in a mutually signed pact that had to be approved by the US.

The US government treated those Native nations as defeated enemies and used treaties to punish them. A well-known example of these punitive treaties is the Treaty of Fort Stanwix, signed by the US and the Haudenosaunee in 1784. Four of the six Haudenosaunee nations had sided with Britain during the war. The treaty forced the Haudenosaunee to give up a large portion of their territory.

During the 1800s, the US increasingly used treaties as a tool to force its will on Native peoples. The Indians gave up much of their territory in exchange for supplies, services, money, and promises that US citizens would not settle on remaining tribal lands. Treaty-guaranteed reservations were reduced in size, and in many cases, the promised funds were never delivered.

In 1871, Congress enacted a law prohibiting the federal government from making new treaties with Native American tribes. However, this did not invalidate or modify any "obligation of any treaty lawfully made and ratified with any such Indian nation or tribe prior to March 3, 1871." Since 1871, federal and state governments have continued to enter into contracts and agreements with tribes on multiple topics, including healthcare services, education, and economic opportunities.

Explore related products

Teaching Spirits: Understanding Native American Religious Traditions

$25.08 $46.99

Connecticut's Indigenous Peoples: What Archaeology, History, and Oral Traditions Teach Us About Their Communities and Cultures

$26.95 $45

The Constitution of the United States and The Declaration of Independence

$1.99 $6.95

American History Made Easy For Kids: A Simple and Engaging Guide to the Most Important Events and Heroes in US History | From Native Tribes to Modern Times

$19.97 $0.99

The Constitution of the United States of America: The Declaration of Independence, The Bill of Rights

$9.99 $9.99

Canada's Indigenous Constitution

$52 $54.95

Native Americans' influence on the Founding Fathers

The influence of Native Americans on the Founding Fathers and the US Constitution is a highly debated topic. While some scholars argue that the Founding Fathers were deeply influenced by Native American political systems, others refute this, stating that European political theory furnished the models for the US Constitution.

One of the most well-known examples of Native American influence is the Iroquois Confederacy, a powerful confederacy of tribal nations in upstate New York. The Iroquois Confederacy was known for its complex system of governance, which included the separation of military and civil leadership, the protection of certain personal freedoms, and democratic policies for referendums, vetoes, and recalls. Benjamin Franklin, one of the Founding Fathers, was closely involved in negotiating and printing treaties with the Iroquois Confederacy and studied their systems of governance. In 1751, Franklin wrote to his colleague James Parker, expressing admiration for the Iroquois system and its lack of forceful control. Other Founding Fathers, such as Thomas Jefferson, also interacted and negotiated with Native American leaders, gaining familiarity with their systems.

The Iroquois Confederacy's influence can be seen in the Articles of Confederation, which reflected Native American ideas more closely than the Constitution. The Articles focused on a looser union of independent nations, similar to the structure of the Iroquois Confederacy. However, the Constitution created a more centralized government with concentrated power, a model that some argue enabled imperialist expansion and deviated from Native American political theories.

While the Founding Fathers interacted with Native Americans and were exposed to their systems of governance, their attitudes towards Native Americans were often shaped by ethnocentric understandings. Natives were often portrayed as either "noble savages" or "brutal savages" in European and pre-revolutionary American culture. Jefferson, for example, initially believed in the need for respect and trade with Native Americans, but later promoted their removal from their ancestral lands, reflecting a shift in perspective.

In conclusion, while the influence of Native Americans on the Founding Fathers is a debated topic, it is clear that the Founding Fathers had interactions and exposure to Native American systems of governance. The Iroquois Confederacy, in particular, had a notable influence on the Founding Fathers' ideas, especially in the creation of the Articles of Confederation. However, the US Constitution took on a different form, reflecting a centralized power structure that deviated from Native American political theories.

Native Americans' constitutional rights

The United States Constitution does not explicitly mention Native Americans or outline their constitutional rights. However, it does refer to "Indians not taxed" in Article I, Section 2, Clause 3, and Section 2 of the Fourteenth Amendment. Additionally, Article I, Section 8, Clause 3 empowers Congress to "regulate commerce with foreign nations, states, and with the Indian tribes".

Despite this, Native Americans have had a significant influence on the development of the US Constitution. Legal scholar Robert Miller, a citizen of the Eastern Shawnee Tribe of Oklahoma, highlights that the Founding Fathers who signed the Constitution were familiar with Native nations and had negotiated treaties or engaged in diplomatic relations with them. Benjamin Franklin, for instance, was closely involved in treaty negotiations and studied the systems of governance of tribes like the Iroquois Confederacy. These confederacies of tribal nations influenced the structure of the US government, with their separation of military and civil leadership, protection of certain personal freedoms, and democratic policies.

In terms of constitutional rights, Native Americans are citizens of the United States and the states in which they reside. They possess the right to vote in state, local, and tribal elections. The Indian Citizenship Act, however, did not initially offer full protection of voting rights, and Native Americans continued to face barriers until the passage of the Civil Rights Act of 1965.

Native American tribes are recognized by the United States as sovereign nations with the inherent authority to govern themselves. This recognition grants them certain powers of self-government and entitlements to federal benefits and protections. The federal government has a "duty to protect" the tribes, and Native Americans can also be rights holders in their Native nation, their state of residence, and with the federal government.

However, Native Americans have faced historical challenges in fully realizing their constitutional rights. The Indian Reorganization Act of 1934, for example, empowered tribes to borrow funds for economic development and form tribal corporations, but some tribes, like the Navajo, opted out. Additionally, while the Indian Education Act of 1972 promoted tribal economic, political, and cultural development, Native Americans have had limited control over federal programs for tribes until the Self-Determination and Education Assistance Act of 1975. Despite these advancements, Native Americans still lack explicit constitutional recognition, and their political, property, and cultural rights remain vulnerable to infringement.

Frequently asked questions