How does a government said to be premised on human rights produce a system of law for American Indians not premised on human rights? In his September 2, 2013 op-ed, published in the Bangor Daily News, Pawnee attorney and author Walter Echohawk implicitly raises this issue in his discussion of the United States Constitution and U.S. federal Indian law.
He says that “the U.S. prides itself on its founding principles that make human rights the core of governance.” Writing as an American, Mr. Echohawk continues: “We are rightfully proud of our Constitution that articulates and protects those [human] rights.” (emphasis added)
According to his assessment, the U.S. system of government was established with “human rights” at its “core”—and those human rights were written into a constitution “that articulates and protects those [human] rights.”
But then he goes on to reveal something of a mystery which can be expressed as follows: How does a system of government said to be premised on human rights manage to create a system of law that, as he says, “is devoid of human rights principles”? According to Echohawk, that system is U.S. federal Indian law. What defines that system and “indigenous rights within the United States,” is, he says, “the 19th century law of colonialism, including doctrines of conquest, discovery, plenary power, unfettered guardianship and race.”
Wouldn't it have been more accurate if he had said that “the opposite of human rights” is what defines “Indigenous rights within the United States”? But that brings us back to the mystery mentioned above. One possibility is that Echohawk is simply mistaken and the U.S. Constitution and the resulting overall U.S. system of government are not premised on human rights. If this is the case, then it makes sense for a system of government not premised on human rights to produce a system of federal Indian law that is also not premised on human rights.
There is a second possibility. The U.S. Constitution was indeed premised on human rights (or what was then called “The Rights of Man”), but exclusively for white Christian people, to the exclusion of black slaves, and American Indians with their own separate and independent nations. If that is the case then there is no contradiction in a human- rights-for-whites-only-system of governance having produced a system of federal Indian law that does not accord human rights to non-white and non-Christian Indians.
Unfortunately, Mr. Echohawk’s analysis of the nature of the problems faced by our nations and peoples lacks a certain specificity. There is something missing from his characterization of the issues. Toward the end of his column, for instance, after giving some dire statistics about the Wabanaki people in the context of the state of Maine, he then says that “[t]his current inequitable situation in our midst is an inherited problem that no one living created. But it is one that we must all solve.”
As we have seen, Mr. Echohawk’s column begins by expressing the origin of the problem as the “19th century law of colonialism,” which includes “doctrines of conquest, discovery, plenary power, unfettered guardianship and race.” Why, then, by the end of his column has he reduced that problem to a bland and generalized “[t]his current inequitable situation in our midst.”
Given that he begins with “the 19th century law of colonialism” “devoid of human rights,” it is unfortunate that he ends his column by generalizing about an “acknowledgment that harm has taken place and continues” (emphasis added), while suggesting that the U.N. Declaration on the Rights of Indigenous Peoples will provide a “healing” solution to that continuing “harm.”
Concepts and categories of domination and subordination in U.S. federal Indian law and policy are still institutionalized in U.S. federal Indian law and policy. Echohawk ought to have focused on the fact that those idea- patterns of colonialism not premised on human rights are still embedded in U.S. law and policy, and those patterns will continue to exist in U.S. law and policy until they are replaced with a different form of thought and ideas about the original nations and peoples of Great Turtle Island. This, however, is a change that the U.S. government is dead set against.
The U.S. government’s interpretation of the UN Declaration on the Rights of Indigenous Peoples reads into it the idea-structure of domination and subordination (Indian nation “domestication”) that characterizes U.S. federal Indian law and policy. That being the case, Mr. Echohawk’s column ought to be treated as a springboard for advocating a key point: The ideas and arguments he calls the “19th century law of colonialism” not based on human rights, with its domination- subordination idea-patterns, ought to be permanently removed from U.S. federal Indian law and policy.
Steven Newcomb (Shawnee, Lenape) is the co-founder and co-director of the Indigenous Law Institute and author of Pagans in the Promised Land: Decoding the Doctrine of Christian Discovery (Fulcrum, 2008).