Indigenous People In The Us Constitution: Where Are They?

The United States Constitution and its amendments do not apply to Native nations, and Indigenous peoples were not involved in the drafting of the US Constitution. However, the US Constitution does contain several direct references to Native Americans, both individually and collectively. Native peoples are specifically mentioned in two sections of Article 1 and in the 14th Amendment. The US Constitution's Article I originally stated that Indians not taxed could not be counted in the voting population of states.

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The US Constitution mentions Indigenous people three times

Firstly, the US Constitution's Article I, Section 2, Clause 3, mentions "Indians not taxed" in the context of voting rights and the apportionment of seats in the House of Representatives. This clause excluded Indigenous people from the voting population, while enslaved people were counted as three-fifths of a person.

Secondly, the Fourteenth Amendment, ratified in 1868, granted citizenship and equal protection under the law to all persons born or naturalized in the United States. However, interpretations of this amendment immediately excluded most Native Americans from citizenship, and they were considered subject to the jurisdiction of the United States.

Thirdly, the Plenary Power Doctrine grants Congress ultimate authority over matters affecting Native American tribes, superseding the Executive and Judicial Branches. This doctrine has been used to assert control over Indigenous governments, resources, and rights, and it highlights the unique relationship between tribal nations and the US government.

It is important to note that while the US Constitution mentions Indigenous people, they were not directly involved in its drafting. Instead, they had their own legal systems and constitutional interpretations, which some scholars argue should be recognized as part of the pre- and post-constitutional legal heritage of the United States. Additionally, some Founding Fathers, such as Benjamin Franklin and Thomas Jefferson, were familiar with Native nations and studied their systems of governance.

Indigenous people debated the US Constitution

The US Constitution was written in the name of the "People of the United States". However, many groups were excluded from its drafting and ratification based on race, gender, and class. Despite this, these groups were far from silent. Indigenous people debated the US Constitution in several ways. Firstly, they had their own internal deliberations over the Constitution, engaging in their own version of the ratification debates. They invoked and critiqued the document, resisting when the principles of their diplomatic constitution were challenged.

Indigenous people had their own distinct legal systems and constitutional interpretations, which were based on fundamentally different principles, worldviews, authorities, and forms of recordation than Anglo-American law. They had a pre-revolutionary constitutional order, which experienced a crisis during and after the Revolution. This was a set of practices, norms, and expectations that governed interactions between Native nations and European empires.

Indigenous people also had their own systems of governance, which were studied by some of the Founding Fathers, including Benjamin Franklin, who negotiated and printed treaties with Native nations, and Thomas Jefferson, who expressed admiration for their systems. John Adams suggested that those drafting the Constitution should study the governments of "the ancient Germans and modern Indians", which he believed divided power among the three branches of executive, judicial, and legislative governance. Adams specifically referenced the Mohawks, who he said enjoyed "complete individual independence", and brought major decisions to "a national assembly".

The Iroquois, Shawnee, Cherokee, and other political formations generally separated military and civil leadership, guarded certain personal freedoms, and included somewhat democratic policies for referendums, vetoes, and recalls. Most also gave women a large role in government, something that wouldn't be seen in the US Constitution for over a century.

By recognizing Indigenous law and constitutional interpretations as part of the legal heritage of the United States, Native peoples can claim their role as co-creators of constitutional law.

Indigenous people have their own legal systems

The United States Constitution mentions American Indians three times. Article I, Section 2, Clause 3, and Section 2 of the Fourteenth Amendment address the handling of "Indians not taxed" in the apportionment of seats.

In the United States, tribal governments operate law enforcement agencies and adopt codes to govern conduct within their jurisdiction. However, the United States retains control over the scope of tribal lawmaking, and laws adopted by Native American governments must pass through the Secretarial Review of the Department of Interior through the Bureau of Indian Affairs.

In Canada, Indigenous law and the Canadian legal system interact in various ways. Canadian courts have recognized that Indigenous Peoples exercised control over their territories according to their own legal systems before the arrival of Europeans. The Constitution Act of 1867 did not extinguish the continued existence of Indigenous powers of self-government, and this right is protected by Section 35 of the Constitution Act, 1982.

However, there are challenges in implementing Indigenous law within the existing Canadian legal structure. There is a risk that "translating" Indigenous laws into a format recognizable to the Canadian legal system will result in misunderstandings and misapplications. Additionally, the interpretation of Indigenous law by non-Indigenous judges with limited knowledge of Indigenous legal systems could perpetuate the violence of colonization.

Despite these challenges, Indigenous Peoples in Canada are actively engaged in revitalizing their own legal systems and implementing their laws. They have the right to establish and maintain their own forms of justice systems in their territories, and these systems must be based on Indigenous concepts and mechanisms of justice to be effective in Aboriginal communities.

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Indigenous people have their own constitutions

The United States Constitution mentions American Indians three times. Article I, Section 2, Clause 3, and Section 2 of the Fourteenth Amendment address the handling of "Indians not taxed" in the apportionment of seats. The Commerce Clause is the only mention in the Constitution that specifies Congress's power regarding Native nations.

The concept of tribal sovereignty in the United States recognizes the inherent authority of Indigenous tribes to govern themselves within US borders. The US federal government recognizes American Indian tribes as independent nations and enters into policy agreements with them via treaties. Native nations, because of their pre-existing sovereign status, must also contend with threats to their political status through the exercise of Congressional plenary power.

Several international states have amended their constitutions to incorporate and acknowledge Indigenous rights and sovereignty, including Canada, Russia, Nicaragua, Guatemala, Columbia, Argentina, Mexico, Brazil, and Honduras.

Indigenous people have always had their own constitutions, and their own separate legal systems. The US Constitution, however, does not adequately protect Indigenous rights and sovereignty.

Indigenous people have a unique relationship with the US government

The relationship between Indigenous people and the US government is unique and complex. Indigenous people, or Native Americans, have a long and complicated history with the US government that dates back to the country's founding. The US Constitution, signed in 1787, specifically mentions American Indians three times, addressing the handling of "Indians not taxed" in the apportionment of seats.

Historically, the US government recognized American Indian tribes as independent nations and entered into treaties with them. The first treaty was signed with the Delaware Indians in 1783, and over time, 374 treaties were enacted between Indigenous peoples and the United States. Many of the Founding Fathers who signed the Constitution had familiarity with Native nations, with some, like Benjamin Franklin, closely involved in negotiating and printing treaties with tribes such as the Iroquois Confederacy. Franklin and other figures like Thomas Jefferson studied and expressed admiration for Native systems of government, which often included the separation of military and civil leadership, the protection of certain personal freedoms, and democratic policies.

However, as the US expanded westward, internal pressure grew for "Indian removal," leading to the Indian Appropriations Act of 1871, which prohibited any future treaties. This marked a shift in the relationship, with the Civil War also fueling a "full-bore assault on tribal culture and institutions" and increased pressure for Native Americans to assimilate. Despite this tumultuous history, Indigenous tribes have retained a degree of sovereignty within the US. They are generally sovereign within their territories concerning tribal members but lack authority over non-tribal members. Tribal governments have their own law enforcement agencies, adopt codes to govern conduct within their jurisdiction, and have access to various grants and funding sources to address community needs.

In recent decades, there have been efforts to improve relations and recognize Indigenous rights. The civil rights movement of the 1960s led to the Indian Self-Determination Act of 1975, restoring some sovereignty to tribal governments and granting them independence in handling federal funds and programs. Additionally, in the 1990s, President Bill Clinton released executive orders affirming the disparate impacts of climate change on Indigenous communities and protecting Native American cultural sites. While the US initially voted against the UN Declaration on the Rights of Indigenous Peoples in 2007, President Barack Obama later declared the government's support in 2010.

Despite these advancements, challenges remain. Crime rates are twice as high on Indian lands, and the federal funding of tribal courts has been criticized as inadequate for effectively administering justice. Additionally, the loss of Native languages and cultural traditions due to historical assimilation efforts continues to impact Indigenous communities. Overall, the relationship between Indigenous people and the US government is unique, marked by a history of treaties, sovereignty debates, cultural tensions, and ongoing advocacy for Indigenous rights and self-determination.

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