American Indians are not ordinary American citizens who enjoy the same protections available to their fellow citizens within the justice system. Legally (it seems to this non-lawyer) American Indians are a defeated, enemy nation whose citizens are now held captive—just like the “detainees” at Gitmo.

Sidebar: No, I don’t want to get into a discussion of the Gitmo mess, except to say that the federal government has made a mess there, just the way they have made a mess of Indian Country. And now it sounds as if they’re going move the mess into my backyard in Illinois.

The history of the war between the United States and the Indians is legendary. In the end, the U. S. won the war and signed a series of treaties with the defeated enemies, that is, the tribes. Today, the reservations and residents of mythical “Indian Country” are governed by the terms of these treaties; and this very fact proves the Indians’ status as a defeated nation. (Just look up the definition of a treaty at a website, such as The Free Dictionary.)

The fact that American Indians were not “treated” as citizens for most of their relationship with the U. S. government is proven by the fact that they were not given the right to vote until after World War I, even though the 15th Amendment in 1869 gave the vote to every other adult male citizen of the United States, regardless of race or ethnicity: in 1924, Indians received the right to vote through an act of Congress, “The Citizenship Act,” not by an amendment to the Constitution.

Why didn’t the 15th Amendment apply to American Indians? Because they were not “citizens of the United States;” they were citizens of Indian Country.

What is Indian Country?

Indian Country is a legal fiction of the federal government: it includes reservations, non-Indian property inside a reservation, Indian “allotments” held in trust by the federal government both on and off the reservations, and associated Indian “communities.”

Of course, you have to ask what the definition of an “Indian tribe” is. As www.duhaime.org’s Legal Dictionary says, “there is no single definition of what an ‘Indian’ tribe is in the United States.” As it now stands, the federal government officially recognizes a list of so-called tribes. Membership in the tribes is determined by a governing tribal organization, which can include and exclude anyone they like or dislike.

Indian Country is federal land—for the most part. That means the federal government has complete jurisdiction over them; the states, counties, and town governments have no jurisdiction (sort of). However, in 1953 the federal government caved in to state pressures and granted the states some jurisdiction over Indian Country through a law known as Public Law 280.

Public Law 280 0f 1953

According to Jerry Gardner and Ada Pecos Melton, Congress passed Public Law 280 because California claimed that the reservations within the state were lawless and a danger to non-Indian neighbors. Of course, what California and several other states really resented was that reservations were not subject to any state laws and did not pay taxes.

Under Public Law 280 five states (and later Alaska when it became a state) were granted complete jurisdiction over reservations within their borders. Several other states were granted the option of complete or partial jurisdiction. (Utah was one of these optional states; its decision to take jurisdiction over reservations there had at least one good effect, namely, Utah had to give Indians the right to vote in state elections.)

However, not every state has any reservations within their borders—but almost all have some Indian Country. For example, Oklahoma (the former “Indian Territory”) has only one reservation, as far as I can tell (it's difficult to find a definitive list of reservations by state), but Oklahoma is not covered by Public Law 280. The Cherokee Nation (headquartered in Tahlequah, OK) has no reservations anywhere.

As Gardner and Melton point out, this is a chaotic situation, and chaos does not promote justice anywhere, and certainly not in a mythical non-place like Indian Country.