"The election of a U.S. President whose heritage includes multiple ethnicities has been hailed around the world as a milestone for racial integration. Ironically, one day before Barack Obama’s election, the U.S. Supreme Court was at work discussing how to implement a 1934 federal law promoting racial segregation. In Carcieri v. Kempthorne, a case pitting the State of Rhode Island against the federal government as guardian of the Narragansett Tribe, neither side nor any of the justices questioned the propriety of the 1934 Indian Reorganization Act’s directive that the federal government raise protective legal walls around persons of “one-half or more Indian blood,” although several justices did express annoyance at the Act’s circular definition of “Indian blood” as the “blood” of an “Indian.”

Discredited elsewhere, 1930s race-thinking persists in U.S. tribal policy. Under current federal law, more than 500 groups presumed to possess “Indian blood” are authorized to govern themselves on reservations that are to varying degrees exempt from the laws of the states in which they are located. As these privileged “Indian blood” communities grow – and with federal recognition of additional such entities planned – states are worried about ever-increasing impediments to their ability to govern. For their part, tribal leaders see freedom from state laws as just the first step toward realizing tribal “sovereignty.”

Definitions of sovereignty differ, but many tribal advocates contend that because tribes were independent nations prior to the American Revolution they are beyond the reach of both federal and state authority in vital respects, having been in effect grandfathered into the American Constitution. This argument encourages the impression that American Indians have only a limited allegiance to the country of which they are citizens. It also misrepresents the Constitution. The framers of the Constitution made compromise arrangements for dealing with “Indian” communities resident in U.S.-claimed territory, just as they accepted slavery as a current reality in most states of the Union. Yet the Constitution did not preclude the future abolition of slavery. Similarly the Constitution acknowledged tribal sovereignty as a practical necessity, since the scores of independent-minded “Indian” communities on U.S.-claimed soil clearly could not be integrated into the American Union on a basis of equality any time soon. But nothing in the Constitution implied permanence for its various “Indian” provisions."

Get the Story:
Francis G. Hutchins: How to fix U.S. tribal policy (Indian Country Today 12/19)