# How Constitutional are Reservations? **URL:** \ **Category:** Great Debates\ **Created:** [May 12, 2000, 4:40am UTC](https://boards.straightdope.com/t/how-constitutional-are-reservations/19310 "2000-05-12T04:40:09Z")\ **Posts on this page:** 18\ **Page:** 1
**Author:** ![Derleth](https://avatars.discourse-cdn.com/v4/letter/d/b9e5f3/32.png) [@Derleth](https://boards.straightdope.com/u/Derleth)\ **Post date:** [May 12, 2000, 4:40am UTC](https://boards.straightdope.com/t/how-constitutional-are-reservations/19310/1 "2000-05-12T04:40:09Z")
Here’s the deal. We have independent nations residing inside our states, with their own laws, own police, and own casinos. They get government aid, since they are wards of the state as much as citizens of their reservation. They can exist on American welfare while not ‘really’ being Americans at all. Where do they get off? ---
**Author:** ![kaylasdad99](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/kaylasdad99/32/3398_2.png) [@kaylasdad99](https://boards.straightdope.com/u/kaylasdad99)\ **Post date:** [May 12, 2000, 4:57am UTC](https://boards.straightdope.com/t/how-constitutional-are-reservations/19310/2 "2000-05-12T04:57:40Z")
What really chaps _my_ hide is when a really popular place refuses to take reservations, so if you want to go there for dinner on a Friday night, you have to either leave work real early and get there by four o’clock in the afternoon, or just resign yourself to a long wait. Especially at those places that don’t have adequate seating in the bar, so you have to sit on the floor in the lobby. And yes, I _am_ referring specifically to the Claim Jumper in Buena Park. ---
**Author:** ![kaylasdad99](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/kaylasdad99/32/3398_2.png) [@kaylasdad99](https://boards.straightdope.com/u/kaylasdad99)\ **Post date:** [May 12, 2000, 4:59am UTC](https://boards.straightdope.com/t/how-constitutional-are-reservations/19310/3 "2000-05-12T04:59:46Z")
BTW, I don’t really think the Constitution enters into it. ---
**Author:** ![Morgan](https://avatars.discourse-cdn.com/v4/letter/m/0ea827/32.png) [@Morgan](https://boards.straightdope.com/u/Morgan)\ **Post date:** [May 12, 2000, 8:22am UTC](https://boards.straightdope.com/t/how-constitutional-are-reservations/19310/4 "2000-05-12T08:22:58Z")
I believe I heard on NPR that Indian reservations are just that land that was RESERVED for the Indian nations. The land is not really U.S. soil. However, certain treaties with these nations give their citizens certain rights and give the nations different types of aid. ---
**Author:** ![ticker](https://avatars.discourse-cdn.com/v4/letter/t/d07c76/32.png) [@ticker](https://boards.straightdope.com/u/ticker)\ **Post date:** [May 12, 2000, 12:27pm UTC](https://boards.straightdope.com/t/how-constitutional-are-reservations/19310/5 "2000-05-12T12:27:41Z")
> [@](#): > > \*\* > They can exist on American welfare while not ‘really’ being Americans at all. Where do they get off? > \*\* How can native americans not ‘really’ be Americans at all? They surely are the most American of all. ---
**Author:** ![system](https://global.discourse-cdn.com/straightdope/original/2X/e/e489c3b7d8fce19c4b355dd4fc3f88cc39c34b87.png) [@system](https://boards.straightdope.com/u/system)\ **Post date:** [May 12, 2000, 1:30pm UTC](https://boards.straightdope.com/t/how-constitutional-are-reservations/19310/6 "2000-05-12T13:30:50Z")
I would like to challenge the basic assumptions of the OP. > [@](#): > > We have independent nations residing inside our states, Are Native American reservations really, legally, technically, “independent nations”? I would like to hear confirmation of this from someone. > [@](#): > > with their own laws, AFAIK, Native Americans living on reservations are completely subject to the laws of the United States of America. They may have other laws in ADDITION to these. > [@](#): > > own police, Perhaps, perhaps not. I would like confirmation from someone. Are these “police” to which you refer not simply “peace officers”, rather than actual tax-supported “cops”, and as such don’t really “arrest” and “prosecute” people? I am always happy to be enlightened. > [@](#): > > and own casinos. Well, yeah. > [@](#): > > They get government aid, Again, yes. > [@](#): > > since they are wards of the state Well, I would like to have someone clarify that, too. What IS the legal status of the Native Americans on a reservation? Are you saying they aren’t American citizens? Are you saying they have all been judged legally incompetent and are therefore “wards of the state”? I would be very surprised to hear that. I’m sure their tribal leaders would be, too. > [@](#): > > as much as citizens of their reservation. Again, they would be “citizens” only if the reservation were an “independent nation”, which as I said, I would like to see confirmed. > [@](#): > > They can exist on American welfare Yes, I would agree that they do receive “American” welfare. But, as “Americans”, aren’t they entitled to it? > [@](#): > > while not ‘really’ being Americans at all. How are you defining “American” here? Born in the USA? WASP? What about all those naturalized Asian “citizens”? > [@](#): > > Where do they get off? Not sure what your beef is with Native Americans. Obviously you are resentful. Why? Are they oppressing you? Did they take your granddaddy’s land for a reservation or something? What? ---
**Author:** ![Gilligan](https://avatars.discourse-cdn.com/v4/letter/g/e0b2c6/32.png) [@Gilligan](https://boards.straightdope.com/u/Gilligan)\ **Post date:** [May 12, 2000, 2:37pm UTC](https://boards.straightdope.com/t/how-constitutional-are-reservations/19310/7 "2000-05-12T14:37:02Z")
Derleth, I don’t know where you get your information, but you may want to take a look at the U.S. Bureau of Indian Affairs FAQ, where many of your charges are addressed. The BIA site is a good starting point for learning the status of Indians in the U.S.today. [http://www.doi.gov/bia/aitoday/q\_and\_a.html](http://www.doi.gov/bia/aitoday/q_and_a.html) ---
**Author:** ![Jodi](https://avatars.discourse-cdn.com/v4/letter/j/7feea3/32.png) [@Jodi](https://boards.straightdope.com/u/Jodi)\ **Post date:** [May 12, 2000, 5:25pm UTC](https://boards.straightdope.com/t/how-constitutional-are-reservations/19310/8 "2000-05-12T17:25:50Z")
NOTTHEMAMA asks: > [@](#): > > Are Native American reservations really, legally, technically, “independent nations”? I would like to hear confirmation of this from someone. No. The Tribes are quasi-sovereign entities who retain the right to govern themselves, but who are in turn overseen by Congress, which can enact laws regulating the Tribes and tribal political practices. > [@](#): > > AFAIK, Native Americans living on reservations are completely subject to the laws of the United States of America. They may have other laws in ADDITION to these. Correct. > [@](#): > > Perhaps, perhaps not. I would like confirmation from someone. Are these “police” to which you refer not simply “peace officers”, rather than actual tax-supported “cops”, and as such don’t really “arrest” and “prosecute” people? I am always happy to be enlightened. Tribes are entitled to have and maintain tribal police forces, and many (if not most) of the tribes residing on incorporated reservations do so. The police officers are paid by the tribe and have full power to enforce tribal, Federal, and, in some cases, state law on the reservation. Individuals arrested for violation of tribal law are prosecuted in tribal court – also set up and maintained by the tribe. > [@](#): > > and own casinos. Not all tribes operate casinos. They must have the authority of Congress to do so, and furthermore may not violate State law in operating the casino – although this last point is being vigorously challenged in court on the grounds that it violates tribal sovereignty. > [@](#): > > They get government aid, Not all tribes receive government aid; some receive payments from the government pursuant to treaty, but that hardly qualifies as “aid.” Tribal members are entitled to receive the same social “government aid” (ie, welfare and food stamps) as every other American citizen is. They are also entitled to appeal to their invididual tribe for assistance. > [@](#): > > since they are wards of the state Native Americans are _not_ wards of the state; they are American citizens, with all the rights the rest of us have. The _tribes_ are subject to oversight by Congress, and to Congressionally-mandated limits to their sovereignty, which is why they are referred to as “quasi-sovereign” instead of truly sovereign, which they are not. That does not make the tribes “wards of the state.” > [@](#): > > as much as citizens of their reservation. Tribal affiliation is generally spoken of in terms of “membership,” instead of “citizenship,” but I’m not sure there is a demonstrable difference for purposes of this debate. > [@](#): > > Yes, I would agree that they do receive “American” welfare. But, as “Americans”, aren’t they entitled to it? Yes. Native Americans are fully American, in addition to possibly (probably, but not necessarily) being members of the various tribes. They are not required to sacrifice their historical tribal affiliation as a condition to being considered Americans. I think they “get off” exactly where they “got on,” which is to say right here in the U.S. of A. They were, after all, here first. ---
**Author:** ![sailor](https://avatars.discourse-cdn.com/v4/letter/s/a587f6/32.png) [@sailor](https://boards.straightdope.com/u/sailor)\ **Post date:** [May 12, 2000, 7:35pm UTC](https://boards.straightdope.com/t/how-constitutional-are-reservations/19310/9 "2000-05-12T19:35:10Z")
As I just explained in another thread in General questions about whether one can buy Cuban cigars in a reservation [http://boards.straightdope.com/sdmb/showthread.php?threadid=24214](http://boards.straightdope.com/sdmb/showthread.php?threadid=24214) I believe the indians are NOT subject to all US laws and do NOT enjoy their full protection. I will not repeat the same thing here but you can see it there. ---
**Author:** ![system](https://global.discourse-cdn.com/straightdope/original/2X/e/e489c3b7d8fce19c4b355dd4fc3f88cc39c34b87.png) [@system](https://boards.straightdope.com/u/system)\ **Post date:** [May 12, 2000, 8:55pm UTC](https://boards.straightdope.com/t/how-constitutional-are-reservations/19310/10 "2000-05-12T20:55:38Z")
Well, in the interests of efficiency and save everybody having to go back and forth, I’ll go ahead and copy **Sailor’s** pertinent remarks from the thread he has provided a link to. As the OP in that thread, **Milossarian** wanted to know, “Do sovereign Indian nations or embassies that are surrounded on all sides by the U.S. have to follow America’s embargos?” He was asking in reference to people importing Cuban cigars onto Indian reservations or the embassies of foreign nations. **Sailor** answered, in part, > [@](#): > > With respect to indian “nations” I have no idea what the legal situation would be but I will tell you I find the whole situation ludicrous. IMHO they should be subject like all other American citizens to all the laws of the USA. > > I remember some years ago there was a case of an indian parent who wanted to take her child off the reservation because she thought it would have a better life. I do not remember the details (maybe someone will remember) but the tribe said no way because we are losing our children and our identity so the child has to be educated here in our ways. The case went up to the Supreme Court who said the tribe did have jurisdiction and the child should be sent back. Unlike with Elian today nobody said a word then. IMHO this is barbaric and Indians should enjoy the same protections and obligations as the rest of Americans. > > Why does the government of the USA feel the Indian Tribes should have the freedom to do what they want inside the USA but not the Cubans in Cuba? Why are they so keen on protecting the individual rights of Cubans against their government and not those of Indians against their tribes? I find it _very_ ironic and very much a case of some being much more equal than others. In a later post in the same thread, **Sailor** said, > [@](#): > > Let’s be realistic, if no treaty had ever been broken Europe would still be ruled by the Romans and I’d be posting this in Latin. I guess you could consider the declaration of independence void as it did not respect the previous order under which the colonists lived. > > The tribes are not independent countries, they are part of the USA and should be subject to all the rights and all the obligations. > > Still I find it amusing that the USA finds it is OK for the indians on American soil to do certain things like not allow parents the freedom to educate their children as they see fit and yet when this happens in Cuba or China they are up in arms about it. Now, as far as the thread we’re in right now, the central question in the OP seems to be nothing more than, “Where do they get off?” I infer a strong feeling of resentment on the part of the OP. What I would like to know, **Derleth,** is, what exactly do you want to debate? If you just want to rant about Indians, you should take it to the Pit. But if you have a specific issue to discuss, we are all ears. I have to go out of town until Monday. I will see you all then. ---
**Author:** ![Jodi](https://avatars.discourse-cdn.com/v4/letter/j/7feea3/32.png) [@Jodi](https://boards.straightdope.com/u/Jodi)\ **Post date:** [May 12, 2000, 9:47pm UTC](https://boards.straightdope.com/t/how-constitutional-are-reservations/19310/11 "2000-05-12T21:47:51Z")
I would also be happy to participate in this “debate,” if I had any idea where the debate was going. But to address myself briefly to Sailor’s remarks: > [@](#): > > With respect to indian “nations” I have no idea what the legal situation would be but I will tell you I find the whole situation ludicrous. Do you see the irony in this statement? How can you deem a particular situation “ludicrous” while simultaneously admitting you know nothing about it? > [@](#): > > I remember some years ago there was a case of an indian parent who wanted to take her child off the reservation because she thought it would have a better life. I do not remember the details (maybe someone will remember) but the tribe said no way because we are losing our children and our identity so the child has to be educated here in our ways. The case went up to the Supreme Court who said the tribe did have jurisdiction and the child should be sent back. I would love to see a cite for this. The Indian Child Welfare Act (ICWA) provides (among other things) that Indian foster parents are given priority for the placement or adoption of Indian children, and further gives the Tribes a formal say in the placement of children who are members of whatever tribe is in question. If there is a custody dispute between an Indian parent and a non-Indian parent, and one wishes to stay on the reservation while the other does not, I can see the courts holding that the child’s status as an Indian would mitigate towards keeping the child on the reservation – assuming at least one parent was in favor of that. (And I’m just hypothesizing here, trying to think of a situation that would even remotely resemble this theoretical “case.”) But the courts would never insist that a parent _stay_ on the reservation to raise his or her child. Indians are not confined to reservations; they may leave if they like, and take their children with them. Insisting that a parent stay on the reservation to raise a child would probably violate the constitutional rights of the parent. I can only assume whatever case you are referring to was a custody dispute between a pro-reservation parent and an anti-reservation parent. But, honestly, I don’t really know _what_ you are talking about. > [@](#): > > Why does the government of the USA feel the Indian Tribes should have the freedom to do what they want inside the USA but not the Cubans in Cuba? Well, I think the government is fairly consistent in wanting both to have “the freedom to do what they want.” Of the two, of course, it’s the Tribes that do not. They must ultimately answer to Congress for their decisions and the scope of their authority. Cuba, as a truly sovereign foreign nation, can do what it wants. > [@](#): > > Why are they so keen on protecting the individual rights of Cubans against their government and not those of Indians against their tribes? I am not aware of any instance where a Tribe attempted to violate the rights of a Tribal member and the government stood by and allowed that to happen. If you are, perhaps you could explain it. ---
**Author:** ![Cervaise](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/cervaise/32/16693_2.png) [@Cervaise](https://boards.straightdope.com/u/Cervaise)\ **Post date:** [May 12, 2000, 10:03pm UTC](https://boards.straightdope.com/t/how-constitutional-are-reservations/19310/12 "2000-05-12T22:03:42Z")
> [@](#): > > How can you deem a particular situation “ludicrous” while simultaneously admitting you know nothing about it? It’s the Birthright of the Strident American. We all feel entitled, nay obligated, to have an opinion about anything and everything, regardless of how ill-informed we might be about any given topic. Reminds me of the Gulf War: Several surveys showed that the more television someone watched, the better-informed they said they were; and the better-informed they said they were, the less-informed they actually turned out to be. Kind of funny, in a heartbreakingly stupid and annoying way. ---
**Author:** ![sailor](https://avatars.discourse-cdn.com/v4/letter/s/a587f6/32.png) [@sailor](https://boards.straightdope.com/u/sailor)\ **Post date:** [May 12, 2000, 10:51pm UTC](https://boards.straightdope.com/t/how-constitutional-are-reservations/19310/13 "2000-05-12T22:51:26Z")
\>\> How can you deem a particular situation “ludicrous” while simultaneously admitting you know nothing about it? Jodih, I think you misinterpreted my phrase. Possibly I did not express myself clearly. Let me restate and clarify that phrase: With respect to indian “nations” I have no idea what the legal situation would be (regarding the original question about buying Cuban cigars there) but I will tell you I find the whole situation ludicrous (regarding their special quasi sovereign status). I hope that makes it clear that I was not expressing an opinion on something I admitted knowing nothing about. On the subject of that kid I do not remember the details and it was some years ago. It could well be that my details are mistaken and I would appreciate any more detailed information. What I do remember basically is that the tribe could overrule the mother and I thought this was inconceivable. As I remember it, there was no pro-tribe parent, just a parent against the tribe. The tribe thought the perpetuation of the tribe was more important than the welfare of the individual child. As I say, if anyone has the details of the case or knows where to find them, I will welcome them. I could well be mistaken. It has happened before 🙂 In any case, the summary of that part of my post is just _my_ very personal opinion that all human beings should have the same rights and obligations regardless of race or background. I know this is not a fashionable opinion these days but I just can’t help myself, I am old fashioned. ---
**Author:** ![Gilligan](https://avatars.discourse-cdn.com/v4/letter/g/e0b2c6/32.png) [@Gilligan](https://boards.straightdope.com/u/Gilligan)\ **Post date:** [May 12, 2000, 10:52pm UTC](https://boards.straightdope.com/t/how-constitutional-are-reservations/19310/14 "2000-05-12T22:52:45Z")
I would also be interested in seeing the details of this custody case. My understanding of the ICWA is that it provides that in child custody cases, jurisdiction is given to tribal authority, not state or federal. Further, that law was enacted to reverse the previous practice of removing Indian children from the custody of the tribe, even from their own parents, “for their own good”. ---
**Author:** ![kaylasdad99](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/kaylasdad99/32/3398_2.png) [@kaylasdad99](https://boards.straightdope.com/u/kaylasdad99)\ **Post date:** [May 12, 2000, 11:55pm UTC](https://boards.straightdope.com/t/how-constitutional-are-reservations/19310/15 "2000-05-12T23:55:47Z")
Just on general principle, if it appears in an editorial in the Orange County Register, I’m inclined to believe that the conclusions are wrong, but I did a google search and found some specifics about the case **sailor** mentioned [here](http://www.ocregister.com/liberty/1997/1297/120897/edit1.html). In brief, the editorial mentions two cases. One of them began in 1989, and involved a young woman who renounced her affiliation with the Aleut tribe, then attempted to give her child up for adoption to non-tribe members. No mention is made of what (if any) amount of time elapsed between her renouncing her ties to the tribe, and her (effectively) renouncing her ties to her child. The tribe got the right of veto power over the adoption anyway, under the ICWA (the act cited by jodih). I believe that this is the particular case cited by **sailor**. The other case, from 1997, struck me as a bit more sordid and tawdry. A couple decided to give up their twins for adoption. The twins’ paternal grandmother, claiming a right under the ICWA (through her affiliation with the Pomo band of Indians), sued to reverse the adoption. The case was eventually settled out of court, saving the USSC from the task of determining the constitutionality of the Act. At least for now. 😃 So, looking at it as an issue of “custody” strikes me as being a bit, well, inappropriate. We need some lawyers to come in and tell us if a person does actually have a right to officially renounce their ties to a tribe, such that the renunciation can also be said to apply to the renouncer’s offspring. Actually, put that way, perhaps we need a _judge_. Please forgive me if the link doesn’t work. ---
**Author:** ![kaylasdad99](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/kaylasdad99/32/3398_2.png) [@kaylasdad99](https://boards.straightdope.com/u/kaylasdad99)\ **Post date:** [May 13, 2000, 12:01am UTC](https://boards.straightdope.com/t/how-constitutional-are-reservations/19310/16 "2000-05-13T00:01:30Z")
And I promise this till be my last attempt, [here](http://www.ocregister.com/liberty/1997/1297/120897/edit1.html) ---
**Author:** ![Derleth](https://avatars.discourse-cdn.com/v4/letter/d/b9e5f3/32.png) [@Derleth](https://boards.straightdope.com/u/Derleth)\ **Post date:** [May 13, 2000, 12:30am UTC](https://boards.straightdope.com/t/how-constitutional-are-reservations/19310/17 "2000-05-13T00:30:33Z")
OK, when I posted the OP I was pretty tired and angry from reading the thread you all crossposted here. Quandoque banus dormitat Homerus. (L. Sometimes even good Homer sleeps [Homer as in the ancient poet], which translates at a conceptual level to Sometimes even good writers aren’t always at their best.) My question is: Why do we still have reservations? Why can’t indians just live like the rest of us, instead of on land with special legal status? Plenty of them do, I know. It seems an anachronism. You’d think treaties would become obsolete when the (descendents of the citizens of the) foreign nation they were made with got voting rights, making those nations no longer foreign. BTW, I’m also in favor of a six-month limit on welfare. Not to start a new GD. ---
**Author:** ![sailor](https://avatars.discourse-cdn.com/v4/letter/s/a587f6/32.png) [@sailor](https://boards.straightdope.com/u/sailor)\ **Post date:** [May 13, 2000, 11:01am UTC](https://boards.straightdope.com/t/how-constitutional-are-reservations/19310/18 "2000-05-13T11:01:20Z")
Kaylasdad, thanks for finding that cite. It is an editorial that mentions the cases but does not give as much information about them as I had hoped. In any case you did better than i did as I could not find anything. I totally agree with that editorial: Quote: the Jodi Argleben case shows how it can be used to infringe the right of an Indian mother to make a free choice about her baby’s future – a choice that American women from every other background take for granted. It is no formula for nurturing self-respect among Indians to sanction a tribal ownership power over the offspring of Indian women. Native Americans have no less claim on individual rights than do Americans more recently arrived. Unquote Yes, again IMHO, we are all equally equal and whatever laws are good enough for the rest of us should be good enough for the tribes. And viceversa, if hunting whales is OK, then it should be OK for everyone.