'Hostile Indian Tribes...Outlaws, Wolves,...Bears...Grizzlies and Things like That?' How the Second Amendment and Supreme Court Precedent Target Tribal Self-Defense

Abstract

This article looks at tribal actions of defending their homelands in colonial and early American history and argues that many tribes’ actions in self-defense were popularly perceived as acts of aggression, which in turn led to Indians’ being defined as ignoble savages in caselaw and in society generally. This imputation of savagery continues to harm tribes because, as the scholar Robert Williams has argued, the cases defining them as “savages” and denigrating their sovereign rights are still cited to support abrogations of tribal sovereignty.

Moreover, abrogations of tribal sovereignty leave tribes unable to defend themselves from outsider depredations. Thus, tribes are still being punished for past acts of self-defense and this situation is leading to the denial of a current right to self-defense in a broad sense.

The article first examines historical evidence of tribes engaging in acts of self-defense in order to expose the fallacy of the portrayal of tribes and individual Indians as savages. Secondly, it looks at the use of savage language to describe Indians in caselaw generally. This is followed by an examination of the wrongs that this language of savagism has facilitated: namely, violence against Indians and legal restrictions on their right to self-defense, particularly their right to bear arms. It then examines the use of the imagery of savagism in Supreme Court caselaw and discusses recent cases that rely on the earlier cases containing this imagery and that abrogate tribal rights. The goal is to expose the popular understanding of tribal roles in early American history as erroneous and thereby bring to light the injustice of continuing to rely on cases that portray tribes as savages.

Keywords: Native Americans, self-defense, Second Amendment, 2nd amendment, tribal sovereignty, savagery, tribal jurisdiction, federal Indian law, critical race theory, right to bear arms, legal history, constitutional law, Indian tribes, race and the law, gun rights, Bill of Rights, Indian tribes, stereotypes