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  • Print publication year: 2010
  • Online publication date: June 2012

7 - Settlers and natives in North America


A colonized population

The legal position of Native Americans under US law has been the subject of two key debates. The first revolves around state versus federal claims to sovereignty over Native Americans. The second is over the relationship of Indians to the political community that is the United States. The first debate has been resolved in favor of federal sovereignty. The second has revolved around two issues – tribal autonomy and individual citizenship rights – and has yet to reach a satisfactory resolution. Tribal autonomy is subject to federal plenary powers; at the same time, Native Americans are a special class of citizens: both citizens and wards of the United States, they are without any constitutionally guaranteed rights.

State sovereignty was historically the preferred shield for settlers wanting to advance local interests. States vied in the courts for full jurisdiction over Native Americans and African-Americans residing within their boundaries and, in extreme cases, went to war over it. State v. Forman (1835) was the first case to confirm state criminal jurisdiction over Indian tribes in direct contradiction to Supreme Court decisions to the contrary (Harring 1994: 42). By the 1880s, most states with significant Indian populations asserted such criminal jurisdiction and simply exercised it. Some, such as California, did so expressly by statute; others, such as Wisconsin and New Mexico, did so with support from judicial opinions under existing state law (ibid.: 49–50).

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