The most fundamental similarity between the African-American
and Native-American experiences was the lack of humanity that the
white establishment presumed each group to possess.8 Church officials, lawmakers, and legal minds intensely debated the relative humanity of each group. The fundamental philosophical and religious
question was whether African Americans and Indians were human beings, entitled to human rights protections like Euro-Americans, or inactively pursuing federal recognition, over fifty tribes have state recognition, and several
groups have been terminated by congressional enactment. See id. at 20-23.
5 See generally id. at 41-62 (discussing tribes' unique status as sovereign nations, as
opposed to minority groups, and the features that accompany this status).
6 See generally VINE DELORIA, JR. & RAYMOND J. DEMALLIE, 2 DOCUMENTS OF AMERICAN
INDIAN DIPLOMACY: TREATIES, AGREEMENTS, AND CONVEN-nONS, 1775-1979, at 745-49,
1018-19, 1084-86 (1999) (containing a brilliant cross-section of the diplomatic accords
negotiated and providing a detailed narrative accompanying these important documents).
7 See U.S. CONST. art. I, § 8, cl. 3 (stating that the Congress shall have the power "To
regulate Commerce with foreign Nations, and among the several States, and the Indian
Tribes").
8 This lack of humanity is easily identifiable in the African-American experience, as
their ancestors were first imported as slaves.
historical experiences of African Americans and Native Americans,
but history, law, politics, and culture suggest even greater substantive
differences between these two groups. The first and most obvious difference is that Native Americans are the indigenous inhabitants of the
United States. Of what significance is this obvious observation? The
preexistence and the nationhood that tribal nations, qua nations, possessed underlies the distinctive sovereign-to-sovereign relationships
that Native Americans still share with state and federal governments. 5
'
Unlike African individuals who involuntarily arrived as slaves, Native
Americans were present in America, inhabiting bounded homelands
with economic, cultural, and governing infrastructures, for millennia.
Thus, Native Americans continue to perceive themselves not only as
pre-constitutional polities, but as continuing extraconstitutional nations who deal with state and federal governments on a governmentto-government basis.
Second, the distinct sovereign status of tribal nations necessitated
the practice of negotiating treaties, political compacts, accords, and
alliances, first with one another, then with the various competing European states, and later with the United states.
from text book of cornell law review
