October 15, 2021

Truth Telling is Critical to Addressing Legal System’s Failings Toward Indigenous Peoples

Russ Feingold President

Russ Feingold
ACS President Russ Feingold

This week, we celebrated Indigenous Peoples' Day. For ACS, this is an opportunity to reaffirm our commitment to truth, racial healing, and transformation. We have to reckon with the founding failures of our Constitution and legal system, and this includes how our Constitution has failed and oppressed Indigenous peoples.

We must reckon with the truth that the establishment of the United States and the governmental structures our founding fathers erected turned independent sovereign tribal nations into dependent ones, against their will. The power and legal authority of tribal governments is now dependent on recognition by the U.S. government and the interpretation of relevant laws and treaties by federal courts.

A substantial portion of the U.S. Constitution is devoted to balancing the powers of the federal government with the powers of the state, respecting the sovereignty of each. Running throughout the Constitution is a consistent commitment to the concept of “self-government.” And yet, the Constitution fails to recognize the existence of a third sovereign entity, that of tribal governments. It goes almost without saying that tribal nations were not given a seat at the table during the drafting of the Constitution. Instead, the Constitution grants to Congress what courts have described as “plenary” powers over Indian affairs, including to make – and break – treaties with federally-recognized tribal nations.

As Elizabeth Reese, Assistant Professor of Law, Stanford University Law School, discussed in our recent Founding Failures program, there are 21 tribal governments in the United States that have reservation land bases that are larger than the state of Rhode Island, and yet, none of those tribal governments are empowered to send senators to the U.S. Senate. Instead, they must lobby the U.S. Senate as if they were a special interest group, rather than sovereign governments within the United States.

The history of this country is riddled with examples of the U.S. government, often enabled by the federal judiciary, blatantly violating tribal sovereignty to the detriment of citizens of tribal nations. The impact of this power dynamic and the Constitution’s failure to recognize tribal nations as a third sovereign range from the chronically under-resourcing of Indian Reservations, to the taking of Native children from their families, to the shifting boundaries of tribal authority depending on who is sitting on the U.S. Supreme Court.

Too often, Indian law is marginalized as a body of law, treated as an anomaly that needn’t be commonly understood. Less than 1 percent of all active Article III judges identify as Native American, and yet federal courts play a significant role in shaping Indian law. Too often, the power of tribal nations is circumscribed by federal judges who have little understanding or exposure to Indian law.

As a country, we must tell the truth about how our laws and legal systems have failed and oppressed Indigenous peoples. That truth telling process is a prerequisite for the legal transformation necessary to restore and properly recognize the sovereign power of tribal nations. This work cannot be done in a day, and ACS is committed to elevating the work being done by native activists and scholars, and to sustaining the necessary work of truth, racial healing, and transformation.