It’s highly appropriate for The American Law Institute to take on federal Indian law; it is fundamental to who we are as a nation.  The history of federal Indian law reflects the country coming to grips with its colonization of indigenous peoples.  The process has gone on now for a long time, obviously, and in the early stages, the state of the law was dismal from a human rights standpoint.

When Alexis de Tocqueville wrote Democracy in America from his detached perspective in the 1830s, he observed:

The conduct of the United States Americans towards the natives was inspired by the most chaste affection for legal formalities. . . .

The Spaniards, by unparalleled atrocities which brand them with indelible shame, did not succeed in exterminating the Indian race and could not even prevent them from sharing their rights; the United States Americans have attained both these results with wonderful ease, quietly, legally, philanthropically.  . . .   It is impossible to destroy men with more respect for the laws of humanity.

You might say that we’ve come a long ways since then, but it’s been a brutal process, one that the Supreme Court has called “schizophrenic.”  For federal policies, and related judicial decisions, have shifted back and forth from efforts to destroy Indian nations to embracing tribal sovereignty and self-determination.

By the terms of the Constitution, Congress has “plenary authority” over Indian affairs.  States have no power in their own right.  There are practical reasons for this:  struggles for resources take place at the local level.  The federal government had to oversee colonization or there would be chaos.  At the same time, early Supreme Court decisions established that the federal government has a “trust responsibility” to protect Indian people.  There is a tension between those roles, and the history of the law, marked by “eras” of federal Indian policy, reflects that.

The pervasive view at the founding of the Republic was that Native Americans would naturally die out, simply disappear.  They didn’t; so federal policy shifted to “removal” — removing tribes from their homelands to remote outposts in what was to become Oklahoma.  The infamous Trail of Tears is one of the best examples of that.  Much of this happened in the context of treaties that tribes entered into at gunpoint.  Towards the end of the nineteenth century, the federal government embarked on “assimilation,” orchestrating the sale of Indian lands, forcing Indian children into boarding schools to rid them of their cultures, and generally working to end tribal governments.

These policies proved disastrous.   Finally, a sort of awakening began in the 1930s with Congress’s enactment of the Indian Reorganization Act.  From that point forward, apart from a relatively brief backlash in the 1950s when Congress decided to terminate a number of tribes, the country has embraced tribal self-governance and the notion that the diverse cultures of Indian peoples are part of the American fabric to be shored up and celebrated.

Felix Cohen, the great legal realist who served on the Columbia Law Review with Herbert Wechsler, was the architect of the Indian Reorganization Act and author of the first treatise in the field.  In one of his many law review articles on Indian law, he famously wrote:

Like the miner’s canary, the Indian marks the shift from fresh air to poison gas in our political atmosphere; and our treatment of Indians, even more than our treatment of other minorities, reflects the rise and fall in our democratic faith.

The body of law that we call federal Indian law derives from federal treaties, statutes, and executive orders with Supreme Court decisions fashioning principles in the nature of federal common law.  In the so-called “modern era” of tribal self-determination, the Court’s decisions reflect a commitment to upholding the sovereign powers of Indian nations so that they can better their economies and preserve their rich cultural ways.

I like to think that the law is progressive, that as time passes, it moves in, let’s just say, “the right direction” by resolving conflicts in a more just way than it has in the past.  I think that federal Indian law really reflects that.  By taking on the Restatement of the Law of American Indians, the ALI is lending its hand in articulating principles that take account of the hard lessons of history.

This is adapted from a transcribed interview of Associate Reporter, Kaighn Smith Jr., conducted by The American Law Institute.

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Kaighn Smith, Jr.

Associate Reporter, American Indian Law Restatement

Kaighn Smith, Jr., leads Drummond Woodsum’s nationwide Indian Law Practice Group. He has represented Indian nations and their enterprises for more than 25 years in cases that focus on jurisdiction and sovereignty disputes, labor and employment relations, complex transactional disputes, environmental matters, and fishing and water rights.

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