Law | Opinion

Harold Monteau: Even more lessons in indigenous law and policy

Thursday, July 28, 2016

The Confederated Salish and Kootenai Tribes of Montana traveled to Washington, D.C., in 1935 to witness the approval of the first constitution under the Indian Reorganization Act of 1934. Photo from History.Com

Harold Monteau, a member of the Chippewa Cree Tribe who is of Metis descent, continues his series on indigenous law and policy. He started with a historic court decision in Canada that recognizes the rights of Metis people and has shifted focus to the United States, where Indian law and policy can be traced to religious doctrines that originated overseas:

As was discussed in Part 3 of this series, the United States has throughout its history, “assumed dominion” over Indians, Indian Tribes and Indian Lands. It has done this since the establishment of Colonial Governments that were surrogate governments of the British Government (The “Crown” as our Canadian Indian relatives refer to it.). The Spanish, French, Dutch and Russian colonizers also had “surrogate” representatives endowed with authority to “govern” over lands that they colonized in the New World. But, the colonizer we are most familiar with is “The Crown”. Our textbooks tend to treat the presence of other “Crowns” rather cursorily.
The origins of present Federal Indian Law and Policy are found in International Law, particularly the law between European Nations referred to as the “Doctrines of Discovery and Conquest”. The first reflecting the European concept that a Nation being the first to “Discover” new lands could claim it for whatever “Crown” sponsored their adventures or Voyages of Discovery. The “Discovery” by one nation entitled it to exclusive “Dominion” over the lands discovered and the “Crown” had the exclusive right to deal with the population therein and exclusive right to deal with the land. The second Doctrine reflects the European concept of assuming “dominion” over other nations by Conquest in a “just war”. They practiced this concept with each other and then extended it to the “Kingdoms” they encountered in the New World. Thus extending these doctrines to indigenous populations they ran into upon discovery and presenting them the option of “Treaty or Annihilation”, usually with a pretty good attempt at the latter before offering the former. The Spanish in particular used annihilation (by some accounts or their English Contemporaries, 20 Million between the 1500s-1700’s). Once submission was accomplished the treatment of the indigenous populations were driven by “Christian Values” to “Christianize and Assimilate” what was left of the population. These practices were an extension of Vatican Religious Doctrine, since the Holy Catholic Church had great influence, and sometimes control, over European Nations that had embraced Christianity to the exclusion of Paganism.
These same Doctrines made their way into British Colonial Law, and in turn, into the Laws of the Continental Congress, the Declaration of Independence and then the Constitution of the United States. The doctrines influenced the development of Indian “policy” within the newly empowered “Congress, Judiciary and Executive” Branches of Government, now taking the place of the “Crown”. Of course, these doctrines also became the legal basis for the Supreme Court affirming the exclusive right of the Federal Government of the United States to deal with the Indians, as opposed to the individual States.

Get the Story:
Harold Monteau: Non-Status Indian in the United States: Part 4 of Daniels v. Canada/Crown (Indian Country Today 7/28)

Supreme Court of Canada Decision:
Daniels v. Canada (April 14, 2016)

Federal Court of Appeal Decision:
Canada v. Daniels (April 17, 2014)