Excerpted from: Larry EchoHawk, Justice for Native Americans Requires Returning to Our Constitutional Origins Vine Deloria, Jr. & David E. Wilkins Tribes, Treaties, and Constitutional Tribulations University of Texas Press 1999, 4 GREENBAG 2nd 101 (Autumn 2000 )
SINCE COLUMBUS' DISCOVERY of a new world, legal scholars and jurists have struggled to respect and define the rights of the dark-skinned natives who originally inhabited the land. The Europeans' struggle resulted in the formulation of a 'Doctrine of Discovery' in the 16th Century that gave legal title to the newly discovered lands to the discovering nation, subject to the right of the native people to 'occupy' the land. Of course, the European discoverers invoked the 'Doctrine of Discovery' to extinguish the natives' right of occupancy through 'just' means in order to acquire valuable natural resources and make room for settlement of non-indigenous white people.
The European process of acquiring lands inhabited by natives by extinguishing their right of occupancy involved nation-to-nation dealing through written treaties. Thus, long before the United States came into being, European nations established the precedent that treaty-making with Indian tribes was the normal method of acquiring lands for settlement, maintaining peaceful relationships, and regulating trade and commerce. It was, therefore, only natural that when the United States became an independent nation it would follow the example set by England and other European nations by dealing with Indian tribes as sovereign nations through treaties. One would think that the United States Constitution, the basic organic document of government in the United States, would define the legal status of Indian tribes when it carefully described the powers of the federal and state governments and how they would relate to one another and foreign nations. After all, not only was there a well-established history of dealing with Indian tribes on a nation-to-nation basis, but at the time the Constitution was drafted and ratified Indians tribes occupied much of the land within the expanding boundaries of the United States. Remarkably, the framers of the Constitution only mentioned Indian tribes twice in the text of the Constitution, and neither of the two phrases mentioning Indians expressly described how the Indian nations would relate to the federal and state governments. The failure of the Constitution to precisely define the legal status of Indian tribes and the authority of federal and state governments in Indian affairs gave rise to confusion, conflict, confiscation and corruption.
Unintentionally, it became the province of the federal judiciary to lead the way in gradually defining the legal status of Indian nations and how tribal sovereignty would be dealt with under American law. The result has been a continuous vacillation in federal law defining the rights of Indians since the Constitution was adopted in 1789. Today, the law defining the relationship between Indian tribes and the federal and state governments is far from clear. Consequently, the future of Indian rights remains uncertain because history demonstrates that Indians have been repeatedly treated unjustly and the Constitution has failed to protect them.