Laura Waldman

Volume 26.2 (download PDF)

Abstract

Since the early years of colonization, Native American people have engaged in continuous legal struggles for land and sovereignty, which have exposed the colonial underpinnings and white supremacist worldview that are the root cause of their ongoing subjugation. In modern times, that often takes the form of government-backed corporate control over natural resources. This note traces the historical links from treaty violations by early white settlers for the purpose of usurping plantation land and gold, to recent incursions by companies building unwanted oil and gas pipelines on Native American lands.

Both then and now, using law as a tool of resistance has had varying results. On the one hand, there are countless instances where the law has been used as a weapon against Indigenous sovereignty, for example allotment leveraged property law to further divide Native American lands, as well as Native American people from their land. The European conceptions of how property ought to be used, enshrined in laws that require land claims to be exclusive, have consistently deprived Native American nations of decision-making over their lands. On the other hand, some treaties have been successful in ensuring enforcement of environmental protections on Indigenous land.

Moreover, the framework that forms the basis for many rights, that tribal membership is a political rather than a racial designation, has been reaffirmed by the Supreme Court. And, though recent judicial efforts to undermine the protective relationship the federal government has with Native American nations have been successful, there is room for deeper understandings of Native American sovereignty to emerge into law—understandings based on inherent, rather than relational sovereignty.