Peter d'Errico: Indian people still subjected to dehumanizing law

Here is where the colonizing law needed a colonizing jurisprudence, and it found that in a colonizing religion. The Spanish Requerimiento is the most infamous expression of this, with its promise and threat of destruction to any and all Natives who did not acknowledge their inferiority to the Spanish Crown and the Pope. A colonizing religion provided the philosophical basis for treating Natives as less than human, in the same way that Africans were treated who were bought and sold in slavery.

A major difference in the subsequent history of the two forms of slavery—Black and Indian—is that the colonizing, dehumanizing religious foundation has been stripped from the law for Blacks, but has been preserved in the law for Indians. The United States discarded the legal basis for Black dehumanization in two phases: first, as to outright slavery, in the Civil War; second, as to the remaining manifestations of legal discrimination, in a 1954 Supreme Court decision, Brown v. Board of Education and the 1964 Civil Rights Act. For Indians, the old religious foundation has never been renounced. Indeed, the Supreme Court affirmed it in a 1955 decision, Tee-Hit-Ton v. United States, upholding the old doctrine that Indians do not own their own lands because they were “heathens” who were “discovered” by Christians.

The United Nations has provided an international law framework to do away with all forms of dehumanization and discrimination against races and peoples. In particular, the UN Declaration of the Rights of Indigenous Peoples supports the freedom of Native Peoples from oppression by any government, colonial or otherwise. This framework is still so new that we cannot yet say whether and to what extent it will be effective.