Tribes, Treaties, and Constitutional Tribulations

by Deloria, Vine; Wilkins, David E.

• ISBN13: 9780292716087
• ISBN10: 0292716087
• Format: Paperback
• Copyright: 2000-01-01
• Publisher: Univ of Texas Pr

Summary

"This book is unique in its thorough analysis of the entire Constitution as it relates to Indian tribes." --Rebecca Tsosie, Professor of Law and Executive Director of the Indian Legal Program, Arizona State University "Federal Indian law . . . is a loosely related collection of past and present acts of Congress, treaties and agreements, executive orders, administrative rulings, and judicial opinions, connected only by the fact that law in some form has been applied haphazardly to American Indians over the course of several centuries. . . . Indians in their tribal relation and Indian tribes in their relation to the federal government hang suspended in a legal wonderland." In this book, two prominent scholars of American Indian law and politics undertake a full historical examination of the relationship between Indians and the United States Constitution that explains the present state of confusion and inconsistent application in U.S. Indian law. The authors examine all sections of the Constitution that explicitly and implicitly apply to Indians and discuss how they have been interpreted and applied from the early republic up to the present. They convincingly argue that the Constitution does not provide any legal rights for American Indians and that the treaty-making process should govern relations between Indian nations and the federal government.

Table of Contents

Introduction	vii
Europeans and the New World	3	(10)
The Articles of Confederation	13	(8)
The Constitution and American Indian Tribes	21	(11)
The Federalist Papers	21	(4)
Explicit Clauses Dealing with Indians	25	(2)
Implicit Clauses Dealing with Indians	27	(5)
The Relationship of Indian Tribes to the Three Branches of the Federal Government	32	(26)
Indians and the Executive Branch	34	(8)
Indians and the Legislative Branch	42	(9)
Indians and the Judicial Branch	51	(7)
The Historical Development of Constitutional Clauses	58	(38)
The Treaty-making Power	59	(12)
The Power to Regulate Commerce	71	(9)
The Property Clause	80	(9)
Miscellaneous Constitutional Clauses	89	(7)
The Constitutional Amendments	96	(43)
The Bill of Rights	97	(2)
The First Amendment: The Establishment of Religion	99	(8)
The First Amendment: The Free Exercise Clause	107	(15)
The Lyng Decision	112	(5)
The Smith Decision	117	(5)
The First Amendment: Freedoms of Speech and Assembly	122	(3)
The Fourth Amendment: Search and Seizure	125	(1)
The Fifth Amendment: Double Jeopardy	126	(3)
The Fifth Amendment: Due Process	129	(3)
The Fifth Amendment: Just Compensation	132	(3)
The Sixth Amendment: Legal Counsel	135	(4)
The Later Constitutional Amendments	139	(17)
The Thirteenth Amendment	140	(1)
The Fourteenth Amendment: Citizenship and Due Process	141	(7)
The Fifteenth Amendment	148	(2)
The Sixteenth Amendment	150	(2)
The Prohibition Amendments	152	(2)
The Twenty-sixth Amendment	154	(2)
The Status of Indian Tribes and the Constitution	156	(7)
Notes	163	(28)
References	191	(6)
Index of Cases	197	(6)
General Index	203