The Indian Law That Helps Build Walls

The first two years of the Trump administration have brought us horror story after horror story about our government: children separated from their families, men and women detained without due process, communities punished because of their faith. These horrors may seem new, but in fact these abuses — and in particular the law that authorizes them — have been part of our constitutional order since the founding of this country.

In many ways, America is just beginning to reckon with slavery and Jim Crow segregation. But at least we have reformed the laws that allowed these abuses. We have overruled the Dred Scott and Plessy v. Ferguson court decisions, banishing the doctrines of overt racism and “separate but equal” from our law, if not from our society. No government would cite these doctrines to justify its actions today.

But we have not yet fully dismantled the legal infrastructure that permitted abuse of Native Americans. On reservations starting in the mid-19th century, the United States established military-run detention camps where the executive branch held limitless power.

In these camps, children were forcibly separated from their families and sent to federally run boarding schools that used violence to “kill the Indian in him, and save the man,” as Capt. Richard Henry Pratt, founder of Carlisle Indian Industrial School, put it in 1892. Native Americans were incarcerated for practicing their faith. Naming ceremonies were forbidden for children, whose hair was cut at the schools, where they were also forced to practice Christianity.