Indigenous people, also known as natives or aboriginals, are cultural groups that are thought to have lived in a particular area since the beginning of time. Since they adopt and uphold their ancient traditions and cultures, they are typically referred to as indigenous people. However, some of the traditions have been lost as a result of the colonization of their areas by newer ethnic groups. Numerous political rights and legal provisions to safeguard indigenous groupings have been approved by the United Nations, International Labor Organizations, and other illustrious international institutions. Due to constant foreign intrusion, indigenous groups confront threats to their sovereignty, economic viability, and access to resources. This paper seeks to recognize the position of indigenous people within the united states constitutional framework. The paper will also aim at analysing the advantages and disadvantages of the provisions in their legal framework therein and provide recommendations for the Australian legal and constitutional framework of attending to this special grouping.
United States constitution and the public law framework.
The united states operate under a written constitution which is the supreme law of the land. The constitutional framework provides for the order and guidelines through which the union is guided by. The government of the United States is divided in to three main arms the first arm is the legislature has ratified in the first article of the constitution. This arm is commonly referred to as congress and is made up of the senate and the house of representatives elected in their respective constituencies. Its main aim is to make laws and represent the people. The second arm is the executive which is outlined in the second article and its power is vested in the presidency. This arm of government is primarily responsible for execution of laws and policies. The third arm of government in the united states is the judiciary, with its power vested in the supreme court. This institution is charged with the interpretation of the law.
Congress and the judiciary are charged with the responsibility of providing oversight to the executive and themselves. The three arms ought to be independent but there rely on each other to ensure separation of power and instigate checks and balances.
The united states constitution allows for fundamental rights and principles within its amendments. The us constitutions are made up of 27 ratified amendments. The first, second, and third amendment provide for safeguarding of individual liberties. In the first amendment for example the constitution provides for the rights of speech, movement and worship. From the fourth all the way to the eighth amendments provide of the safeguard of justice, whereby individuals or groups are allowed right to free and fair trial, bails and fines as well as protection from unnecessarily harassment by the state or federal governments. Other amendments focus on unreserved rights and powers as well as civil rights.
In article six of the United states constitution, the constitution establishes its supremacy. The laws in the united states can be classified as: constitutional, statutory, treaties, administrative or common law. Judges in the American common law not are bound to apply and define the law, to a point where their verdicts become precedent for future decisions. Congress by its constitutional mandate has the power to ratify laws for specific purposes, this become federal laws. The laws can be classified as either statues or regulations.
Position of indigenous groups in the U.S.
The constitution of the United States recognizes the right indigenous tribes to govern themselves within the country’s borders. The federal government identifies tribal as "domestic dependent nations" and has established a several laws aimed at distinguishing relationship between the federal, state and tribal governments.
The Constitution of the united states alludes to Native American tribes in three instances: in the first instance the constitution states that "Representatives and direct Taxes shall be apportioned among the several States ... excluding Indians not taxed.” Commentators explain that native American existed in majority the states at the time. They were however treated with contempt and highly discriminated. they were not part of any independent communities that exercised sovereignty. In another Section the Constitution states that “Congress shall have the power to regulate Commerce with foreign nations and among the several states, and with the Indian tribes”. Thus indicating that Native Americans were separate from the federal government, the states, and foreign nations. Finally, in the Fourteenth Amendment, Section 2 amends the apportionment of representatives in the tribal governments.
These Constitutional provisions, and subsequent interpretations are often summarized in three principles of Territorial Sovereignty, Plenary Power Doctrine, and Trust Relationship.
In the early 2000s the powers of tribal courts varied subject to whether the tribe was in a Public Law 280 state or not. Today tribal courts still maintain criminal jurisdiction over their members. However, they have on issues regarding tribal land they possess jurisdiction over non-members. The punishments for crimes under the tribal courts is limited to a fine of $5,000 fine and a jail term of not exceeding one year. For states where the public law 280 operates, the state is accorded the role of criminal and civil adjudicator. A native crime in a native territory may be prosecuted in federal court if the crime is one of those listed in the Major Crimes Act . a native who commits a non-native crime in native territory is prosecuted in federal court, unless they have already been punished and native territories. A non-native who commits a native crime in native territory will be prosecuted in federal court. Non-native who commits a non-native crime in native territory is prosecuted by the state.
While tribal territories are not allowed direct to litigate against individual states directly in the U.S courts. They are allowed as sovereign territories to enjoy immunity against lawsuits, except when a litigant is granted a waiver by the tribe or by congressional abrogation. The sovereignty spreads to tribal enterprises and business ventures.
Tribal governments are today allowed launch economic ventures, operate growing law enforcement agencies and adopt codes to govern conduct within their jurisdiction but the United States retains control over the scope of tribal law making. The mandate to review laws embraced by tribal government is bestowed on the Bureau of Indian Affairs, which falls under the State Department of interior.
Technically, Congress has fewer power over native territory than it does over individual states. In the 1970s, Indian termination policy was substituted by the Native American self-determination policy as the official federal policy towards indigenous tribes. Self-determination encouraged the capacity of natives to rule over themselves and make decisions that affect natives. It has been advocated that indigenous tribes issues should be handled tby the United States Secretary of State.
The mandate of tribes to govern themselves is not bestowed on Congress. however, congress has the ability to limit that mandate. The tribe is assume all sovereign mandate unless stated otherwise by treaties or federal statues. Existing federal rules are aware of this sovereignty and emphasis on intergovernmental interaction between the federal and the native governments. However, majority of native land is held in trust by the federal government, and federal law controls economic and poltical rights of tribal governments. While tribal criminal jurisdiction over Indians is reasonably well settled, Tribes are still striving to achieve criminal jurisdiction over non-natives who commit crimes in native territory.
In Oliphant v. Suquamish Indian Tribe the supreme court ruled that tribal governments do not have the jurisdiction to arrest, prosecute or convict non-native committing crimes in tribal territory.
Another dispute over Native American territories is their authority vis a vis that of the states. The federal government is mandated to makes treaties with native tribes while individual states cannot. This shows that Indian tribes were separate from the federal or state governments and that the states did not have power to regulate commerce with the tribes, much less regulate the tribes.
The states and tribal nations have clashed over numerous issues. Case in point is the native American belief that pacts between their ancestors and the United States government, safeguarding their fishing rights, while non-natives asserts that states are in charge of regulating fishing. In Menominee Tribe v. United States in 1968, the court decreed that “the establishment of a reservation by treaty, statute or agreement includes an implied right of Indians to hunt and fish on that reservation free of regulation by the state”. On numerous occasions sttes have tried to impose themselves on natives, but federal government ruling has continuously ruled in favour of tribal sovereignty. In Worcester v. Georgia, the supreme court “ruled that when the United States assumed the role of protector of the tribes from the English, it neither denied nor destroyed their sovereignty.” However, citizens united states are subject to all federal laws even if they possess tribal citizenship.
Advantages of the U.S indigenous laws
Existence of the customary laws has helped realizing and appreciation of other people’s culture and traditional practices. Through customary laws, the culture and social practices carried out by the indigenous people gets the space to be exercised and spread hence bringing the sense of belonging and involvement both from the natives and the government. Through sharing such practices, the aspect of cohesion gets to grow and become fostered.
Laws such as tribal common law are normally based on the values and norms of that particular tribe. It is usually expressed in their customs, traditions, and practices. These laws in some areas have been applied and scrutinized in different court decisions over time and they have ended up becoming case laws. Under such laws, there are traditional factors such as sharing of properties upon divorce. Those communities that practice such laws will get advantaged if the laws of that country much as they don’t permit that will get to be addressed through inclusion of such customary laws.
In some areas, customary laws dictate region/ places where families get to conduct activities such as fishing, hunting, and gathering. Such laws get to be moved across generations hence creating some sense of authority and respect of other’s property and territory. If their regions are intruded, then the offended family will request for compensation. Fines imposed in such matters and offenses gives the families some sense of responsibility and hence the laws and orders get to be imposed automatically.
There more the customary laws are applied, the more the underatanding of the communities. This is because, once a law has been put into place, the more you get to understand the other community as a way of appreciating believes and traditional practices. This goes a long way in understanding other’s view on legal justice and how they view the laws from their perspective. Most laws may require a wide interpretations as they are found at times to be too ambiguous and/or covering a wide aspect to an extend of the need to break down to simpler and easy to understand level. This will lead to first learning the ways of that community so as to apply the laws appropriately.
Disadvantage of the U.S indigenous laws.
In some instance where there is an accuser and accusee are form different communities, application of customary law may end up conflicting. This is because, each party would want to be addressed using their respective customary law hence causing conflicting interest. In such cases, if the rule of law is applied outside the constraints of the two parties, there will be some sense of negligence and favourism. Both parties will feel that the customary law is treated as secondary. Therefore the judges are thrown to dilemma and hence find difficulty in determining who to be declare the winner or loser especially in civil cases. They are likely to find that they have settled on a decision that has a lot of imbalances in their final decision.
Some laws are guided by the unwritten customary laws, traditions, and practices which are taught through example, life examples and through words of mouth by teachings of elders of the tribe. Such laws are very crucial and therefore it is hard to put into effect since the more they are passed down the generation, the more they undergo modification and loss of meaning. Also , they are hard to be applied and quoted since they are not contained in any of the documented form and therefore they may not be real time applicable and responsive enough to most situations.
Recommenations for Australia.
There are no indigenous legal system functioning in either Australia that is even slightly similar to the Native American system. The subject of launching Indigenous justice systems has been studied in depth by the Australia Law Reform Commission as part of its account on Indigenous customary law.
Although Indigenous justice sysystm operates in many parts of Australia, with and without official approval of the state, dispute resolution conducted in the traditional manner has received little attention from outside observers. Australia, however, has experienced few instances with the operation of varying justice aimed at indegenous and Torres Strait Islander peoples. In the Australian state of Queensland, the community council in each trust area is empowered under state law to enact by-laws on matters such as health, housing, peace, welfare, order, morality, convenience and food supply. Similariy to the American indian system the fines for the offence are limited. The similarity with the Indian Act is also present in another aspect, in that there is a requirement in the Queensland legislation to have the by-law approved by the Governor in Council before it is effective
The Western Australia government also has had legislation in force since 1979 authorizing the incorporation of Aboriginal communities whose local councils can pass by-laws, subject to approval by the state government, which apply to persons within the boundaries of the community. These by-laws relate to local matters and are similar in nature to section 81 of the Indian Act, with the penalty being a fine of up to $100, or imprisonment for less than three months, or both. This legislation was a substitute for an earlier statutory scheme, dating back to the Depression, which did not contain a local government structure but did include, at various points in time, a community court system comprised of a magistrate and Aboriginal justices of the peace sitting together in judgment on minor offences. There have also been a few Aboriginal justices of the peace appointed in the Northern Territory. While they serve within the general system, they are located primarily within Aboriginal communities.
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