Wednesday, March 14, 2007
Fletcher on the Original Understanding of Indian Tribes
Posted by Mary L. Dudziak
Yet another originalism paper, this time on the status of American Indians. Matthew L.M. Fletcher's paper (Michigan State) is The Original Understanding of the Political Status of Indian Tribes. Here's the abstract: This Article will demonstrate that virtually all elements of Indian affairs can be traced to the decision of the United States to recognize Indian tribes as political entities and to make Indian law and policy based on the political status of Indian tribes. Indian law is often assumed to be race law. As a result, observers tend to try to force Indian law into the constitutional race law paradigm. Justice Blackmun's footnote 24 in Morton v. Mancari – describing federal legislation and rules relating to Indian tribes as a political classification – hit upon the proper understanding of Indian law. The implementation of the rule of Johnson v. M'Intosh, Indian treaties, and Acts of the First Congress offers significant evidence that the original understanding of the Founders was that Indian tribes and the federal government enjoy a political relationship, not racial.