Singer on Indian Nations and the Constitution

Joseph William Singer, Harvard Law School, has posted Indian Nations and the Constitution, which appeared in the Maine Law Review 20 (2018): 199-209:

This Constitution Day speech focuses on how the Constitution has been interpreted both to protect and to undermine the sovereignty of Indian nations. The good news is that both the text of the Constitution and the practice of the United States have recognized Indian nations as sovereigns who pre-existed the creation of the United States and who retain their inherent original sovereignty. The bad news is that the Constitution has often been interpreted by the Supreme Court to deny Indian nations protection for their property rights and their sovereignty. Most Americans are not aware of the history of interactions between the United States and Indian nations and most lawyers and law students never study the ways the Constitution treats Indian nations and their citizens differently from non-Indians. It is important for Americans to better understand the ways that the Constitution protects Indian nations from continued conquest and to understand the ways that the Supreme Court has interpreted the Constitution so as to deny equal rights to Indians and Indian nations. Limiting tribal sovereignty or harming tribal property without tribal consent is an act of conquest. It is an act that cannot be deemed consistent with our democratic values. Conquest is an historical fact that cannot be undone, but we can recognize that conquest was incomplete and that tribal sovereignty persists alongside that of the states and the federal government. The least we can do to honor the Constitution is to recognize the reality of conquest while committing not to do it ourselves. We can do that by consulting with Indian nations over matters that concern them; we can honor our treaty commitments. We can follow the lead of Chief Justice Marshall who lamented the fact of conquest and counseled the United States not to do it anymore.