Possibilities and Limits of Native Claims-Making within US Law

AHA Session 260
Sunday, January 6, 2019: 9:00 AM-10:30 AM
Wilson Room (Palmer House Hilton, Third Floor)
Frederick E. Hoxie, University of Illinois at Urbana-Champaign
Ned Blackhawk, Yale University and Frederick E. Hoxie, University of Illinois at Urbana-Champaign

Session Abstract

Indigenous peoples enfolded within the purported borders of the United States confronted an alien body of law that sought to define their rights and status—so-called federal Indian law. Crafted by federal officials and courts, these doctrines acknowledged indigenous polities as nations with limited sovereignty supposedly protected by the United States. Within this legal frame, federally recognized tribes have possessed some legally enforceable autonomy even as they have been subject to the overarching authority of the federal government.

The papers presented in this panel explore how Native peoples within the United States have engaged with, resisted, contested, and helped forge this body of law, and also how acknowledging this history reframes conventional narratives about U.S. legal history. The panelists take a broad look at indigenous legal strategies across the sweep of U.S. history. Chronologically first, Gregory Ablavsky examines Haudenosaunee and Creek engagement with principles of European international law after the Revolution. He finds that, even as the U.S. Supreme Court seemingly conceded some Native interpretive claims in the foundational Indian-law cases of the early nineteenth century, it massaged other law of nations principles to foreclose Native autonomy and claim paramount U.S. sovereignty. Next, Maggie McKinley employs a synthetic lens grounded in political theory to argue for the place of federal Indian law, and the claims advanced by indigenous peoples against the United States, in rethinking the lessons drawn from conventional narratives of U.S. constitutional history. She argues that the history of the indigenous peoples’ colonization offers alternative conclusions about the best methods to protect minorities within a democracy from conventional understandings fixated on the civil rights movement, urging a focus on structure instead of rights, and demonstrating that current paradigms often harm rather than protect Native nations. Finally, Doug Kiel closely examines the jurisdictional disputes that arose within the reservation of the Oneida Nation of Wisconsin as the resurgent nation engaged in an ambitious land buy-back program that prompted legal conflict with non-Native inhabitants of the reservation. His paper emphasizes the limits that federal Indian law places on the Native nations’ efforts at decolonization, highlighting the dilemmas of strictly territorial frameworks of indigenous nationhood.

This panel—a mix of historians of Native America, legal historians based in history departments and law schools, and legal scholars—brings an interdisciplinary focus to the fundamental question of the legitimacy of U.S. claims to legal authority over Native peoples. It explores this issue through the lens of historical indigenous actors themselves, who have navigated the structures of federal law even as they challenged U.S. assertions of sovereignty. This session also examines the possibilities and limits throughout U.S. history of securing what indigenous peoples considered justice from a legal order they regarded as fundamentally unjust.

See more of: AHA Sessions