Injustices of the Past and Present Against Native Americans

Injustices of the Past and Present Against Native Americans

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Many people who don't fully understand the history of the United States' interactions with Native American nations believe that while there once may have been abuses perpetrated against them, it was limited to a past that no longer exists.

Consequently, there is a sense that Native Americans are stuck in a mode of self-pitying victimhood which they continue to try to exploit for various reasons. However, there are many ways that the injustices of the past are still realities for today's native people, making history relevant today. Even in the face of fairer policies of the last 40 or 50 years and numerous laws that are designed to correct past injustices, there are a myriad of ways that the past still works against Native Americans, and this article covers just a few of the most harmful instances.

The Legal Realm

The legal basis of the US relationship with tribal nations is rooted in the treaty relationship; the US made approximately 800 treaties with tribes (with the US refusing to ratify over 400 of them). Of those that were ratified, all of them were violated by the US in sometimes extreme ways that resulted in massive land theft and the subjection of Native Americans to the foreign power of American law. This was against the intent of the treaties, which are legal instruments that function to regulate agreements between sovereign nations. When tribes tried to seek justice in the American Supreme Court beginning in 1828, what they got instead were rulings that justified American domination and laid the groundwork for future domination and land theft through the power of Congress and the courts.

What resulted was the creation of what legal scholars have termed "legal myths." These myths are based on outdated, racist ideologies that held Indians as an inferior form of human being who needed to be "elevated" to Eurocentric norms of civilization. The best example of this is encoded in the doctrine of discovery, a cornerstone of federal Indian law today. Another one is the concept of domestic dependent nations, articulated as early as 1831 by Supreme Court Justice John Marshall in Cherokee Nation v. Georgia in which he argued that the relationship of tribes to the United States "resembles that of a ward to his guardian."

There are several other problematic legal concepts in federal Native American law, but perhaps the worst among them is the plenary power doctrine in which Congress presumes for itself, without consent of the tribes, that it has absolute power over Native Americans and their resources.

The Trust Doctrine and Land Ownership

Legal scholars and experts have widely differing opinions about the origins of the trust doctrine and what it actually means, but that it has no basis in the Constitution is generally acknowledged. A liberal interpretation argues that the federal government has a legally enforceable fiduciary responsibility to act with the "most scrupulous good faith and candor" in its dealings with tribes.

Conservative or "anti-trust" interpretations argue that the concept is not legally enforceable and, furthermore, that the federal government possesses the power to handle Native American affairs in whatever manner it sees fit, no matter how detrimental to tribes their actions may be. An example of how this has worked against tribes historically is in the gross mismanagement of tribal resources for over 100 years where a proper accounting of revenues generated from tribal lands was never conducted, leading to the Claims Resolution Act of 2010, more commonly known as the Cobell Settlement.

One legal reality Native Americans face is that under the trust doctrine they don't actually hold title to their own lands. Instead, the federal government holds "aboriginal title" in trust on Native Americans' behalf, a form of title that essentially only recognizes the Native American right of occupancy as opposed to full ownership rights in the same way a person owns title to land or property in fee simple. Under an anti-trust interpretation of the trust doctrine, in addition to the reality of the plenary power doctrine of absolute Congressional power over Native American affairs, there still exists the very real possibility of further land and resource loss given a hostile enough political climate and the lack of political will to protect Native lands and rights.

Social Issues

The gradual process of the United States' domination of Native nations led to profound social disruptions that still plague Native communities in the forms of poverty, substance abuse, alcohol abuse, disproportionately high health problems, substandard education, and substandard healthcare.

Under the trust relationship and based on the treaty history, the United States has assumed the responsibility for healthcare and education for Native Americans. Despite the disruptions to tribes from past policies, especially assimilation and termination, native people must be able to prove their affiliation with tribal nations in order to benefit from Native American education and healthcare programs. Bartolomé de Las Casas was one of the very first advocates for Native American rights, earning himself the nickname "Defender of the Native Americans."

Blood Quantum and Identity

The federal government imposed criteria that classified Indians based on their race, expressed in terms of fractions of Indian "blood quantum," rather than their political status as members or citizens of their tribal nations (in the same way American citizenship is determined, for example).

With intermarriage blood quantum is lowered and eventually a threshold is reached where a person is no longer considered Indian, even despite connection to communities and culture that have been maintained. Although tribes are free to establish their own criteria for belonging, most still follow the blood quantum model initially forced on them. The federal government still uses the blood quantum criteria for many of their Indian benefit programs. As native people continue to intermarry between tribes and with people of other races, blood quantum within individual tribes continues to be lowered, resulting in what some scholars have termed "statistical genocide" or elimination.

Additionally, the federal government's past policies have caused Native Americans to eliminate their political relationship with the US, leaving people who no longer are considered Native American because of the lack of federal recognition.


Inouye, Daniel. "Preface," Exiled in the Land of the Free: Democracy, Indian Nations, and the U.S. Constitution. Santa Fe: Clear Light Publishers, 1992.

Wilkins and Lomawaima. Uneven Ground: American Indian Sovereignty and Federal Law. Norman: University of Oklahoma Press, 2001.

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