Duthu (Law/Vermont Law School), a United Houma Indian Nation tribal member, examines American Indian-White relations through the prism of law and public policy.
After more than 200 years of intergovernmental relations with the states and federal government, the question of where and how the Indian tribes fit within the framework of American constitutional democracy still persists. In this latest from the Penguin Library of American Indian History series, Duthu attributes this irresolution to federal Indian law’s incorporation of a preferred creation story about nation-building and national identity and to lingering racism. Harsh charges, to be sure, but ones the author amply substantiates through his well-informed, evenhanded discussion. Citing statutes and cases, he charts the evolution of U.S. tribal law from the Marshall Court’s clear recognition of tribal sovereignty—constrained only by narrow “framework limitations,” the power to freely transact property and conduct foreign relations—through a period of unchecked congressional power over the tribes, to the current uneasy, ill-defined efforts to conduct government-to-government transactions according to negotiated agreements. His survey includes an extended discourse on the tribes’ authority over ancestral homelands and the environmental and economic progress they’ve made, an overview of the legal tension between America’s reverence for individual rights versus the Indians’ traditional elevation of group rights, and a call for greater national literacy about Indians as America’s “first sovereigns.” Notwithstanding the legacy of broken treaties, ever-shifting federal policies and popular misconceptions about, first, Indians as an inferior race, and now, Indians as a specially “favored” class, Duthu makes clear that the law can show us the way back to fair dealing. Justice begins, he argues, with a frank acknowledgment of the tribes’ constitutionally protected sovereignty, the rebuilding of tribal defenses against encroaching state authority, a revival of the treaty-making model for doing business, intelligent use of the knowledge and traditions found in Indian practice, the teachings of the Marshall Court and indigenous-rights declarations in international law.
A concise history of the law and a stout defense of tribal rights, useful to the practitioner and, ever rarer, accessible to the general reader.