The Time Trap: Addressing the Stereotypes that Undermine Tribal Sovereignty

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Adam Crepelle, Assistant Professor, Antonin Scalia Law School, George Mason University; Director, Tribal Law & Economics Program, at the Law & Economics Center; Associate Professor and Managing Fellow, Native American Law and Policy Institute, Southern University Law Center; Campbell Fellow, The Hoover Institution at Stanford University; Associate Justice, Pascua Yaqui Tribe.

History is deeply embedded in federal Indian law. According to jurisprudence, Indians were nonagricultural “savages” prior to 1492. Indians’ supposed lack of sophistication played a vital role in foundational cases determining Indian rights and the extent of tribal sovereignty. The process of stare decisis has resulted in repetition of the principles formulated on the belief in Indian simplicity; consequently, historic ideas of Indians continue to impact present-day Indian rights—often for the worse. This is the time trap.

The time trap is the popular belief that Indian cultures were simple, non-commercial, hunter-gatherers prior to European arrival. Encapsulated within this belief is the idea that indigenous cultures are static and erode as they merge with mainstream society. However, this perception is incorrect: the indigenous peoples of North America had complex societies prior to 1492, including agriculture and expansive trade networks. Indian tribes organically incorporated previously unknown items from Europe, such as the horse and gun, into their cultures. This Article asserts that reexamining how society and the law view Indian history is the key to unlocking the time trap.

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