Legal Question in Native American Law in California

How many laws passed by congress directly related to Indian affairs have been found to be unconstitutional by the Supreme Court

Asked on 5/14/10, 3:42 pm

1 Answer from Attorneys

Bryan Whipple Bryan R. R. Whipple, Attorney at Law

Not many, probably because Indians are mentioned in only three places in the U.S. Constitution. Article 1 and the 14th Amendment exclude "Indians not taxed" for the purposes of apportioning taxes and for representation in Congress, and the Commerce Clause authorizes Congress to regulate commerce "with foreign nations, among the several states and with the Indian Tribes."

A count of specific laws would be a foolish academic exercise in bean-counting. It is more important to appreciate the legal, ethical and moral foundations, or lack thereof, driving European colonization and its treatment of the Indians. Many historians agree with early French observer of America Alexis de Tocqueville, who wrote in his classic "Democracy in America" that the ".....conduct of Americans towards the aborigines is characterized by a singular attachment to the formalities of law" through which the United States accomplished an extermination of much of its Indian race through law "with a singular felicity, tranquility legally, philanthropically........without violating a single great principle of morality in the eyes of the world" ...... "It is impossible to destroy men with more respect for the laws of humanity." de Tocqueville, "Democracy in America." Many other historians and political philosophers agree that early America constructed great legal philosophies about the Indians as soverign nations but somehow second-class, and then employed these lofty ideas in ways that suited the westward march of European-style ways.

If this was a homework question of some kind, that's not a suitable use of LawGuru. Also, we are intended to help individuals with their specific, personal legal problems, not to be a discussion forum for political, conceptual or theoretical issues.

Read more
Answered on 5/19/10, 9:11 pm

Related Questions & Answers

More Native American Law questions and answers in California