Title

A People Without Law

Document Type

Article

Publication

The Indigenous Law Journal at the University of Toronto Faculty of Law

Year

2006

Abstract

American Indian nations seldom brought lawsuits to enforce their rights prior to the 1960s but have often done so since. Why were so few cases filed until recently? In addition to such obvious barriers as poverty, racial hostility, and smothering federal control, legal and popular literature raised doubt about whether Native American tribes had legal capacity to sue. Our article examines the grounds for this view, from its beginning in 1830 until its last gasp in 1968.

The incapacity question was one of the grounds for tracts in pamphlets and journals published in the 1880s by the self-proclaimed Friends of the Indian, a group of eastern reformers preaching assimilation as the cure-all for Native American grievances. Led by Harvard professor James Bradley Thayer, the Friends provided strong support for the ill-fated allotment policy that undermined tribal societies for over 70 years. The issue also became entangled in the jurisdiction of the Court of Claims over Indian treaty claims and over the notorious "Indian depredation" cases.

We conclude that the incapacity claim never had legal validity but at times suited the political agenda of powerful men and was the subject of careless and ignorant dicta. When the issue reached the US. Supreme Court, it was consistently rejected without a dissenting vote. We could not determine whether the capacity error was a serious impediment to Indian claims; proof of a negative is always difficult. But in any case, other barriers were more than sufficient to deny justice to Native American claims.

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