Freedom`s Law and Indigenous Rights: From Europe`s Oeconomy to

Studies in Compar ati v e Legal History
Freedom’s Law and Indigenous Rights:
From Europe’s Oeconomy to the
Constitutionalism of the Americas
Bartolomé Clavero
The Robbins Collection
Robbins Collection Publications
School of Law (Boalt Hall)
University of California at Berkeley
Berkeley, California 94720
(510) 642-5094 (510) 642-8325
http://www.law.berkeley.edu/robbins
©2005 by the Regents of the University of California, The Robbins Religious and Civil
Law Collection, School of Law (Boalt Hall), University of California at Berkeley.
All Rights Reserved.
This book is printed on acid-free paper.
isbn 1-882239-16-4
Library of Congress Cataloging-in-Publication Data
Clavero, Bartolomé.
Freedom’s law and indigenous rights : from Europe’s oeconomy to the constitutionalism of the Americas / Bartolomé Clavero.
p. cm.— (Studies in comparative legal history)
Includes bibliographical references and index.
ISBN 1-882239-16-4 (alk. paper)
1. Indians of North America—Legal status, laws, etc.—History. 2. Indians of Mexico—
Legal status, laws, etc.—History. 3. Indigenous peoples—Civil rights—History. I. Title. II.
Series.
kf8205.c54 2005
342.7308'72—dc22
2005020182
For Mercedes, otherwise known as Antidora
Contents
Foreword xi
I. Freedom’s Law and Oeconomical Status:
The Euro-American Constituent Moment
1
Constitution in time
3
Experiment in method
5
Individuals and persons
12
Liberties and status
17
States or nations
22
Law of nature
26
Visit to Virginia, U.S.
30
American natural oeconomy
35
Linguistic return
38
Text in context
42
Ways to Europes and non-Europes
45
Annexes
Sources
50
50
51
51
52
54
55
Readings:
Early Euro-American constitutionalism
Freedom, discrimination, subjection
The severance of textualism
For further checks
II. Minority making: Indigenous people and non-indigenous law between Mexico and the United States
57
Trompe-l’œil in both history and law: majority as minority
59
Opening challenge: Indigenous citizenship from European Spain to Hispanic Mexico
Imperial Constitution and indigenous people
Cultural approach and family affairs
Indigenous citizenship and colonial rule
62
63
65
67
Constitutional strategies: The location of the individuals
70
Accommodation through powers
Municipal incorporation as reservation
72
74
75
Territory versus state regime
Accommodation through rights
Trial by jury and customary law
The Mexico-Texas confrontation on rights
The Mexican and Texan polities compared
Communal property and local government
77
78
80
82
83
Oaxaca versus Mexico on indigenous self-determination: Ways and means backwards and forwards
86
Constitutional pronouncements and the voice of silence
93
Back to a constituent moment: The law of nations and treaty-making
95
Indigenous Peoples after the Treaty of Guadalupe Hidalgo
Awkward constitutional compliance in California
The Apache polity and non-sedentary peoples
Diné Bikeyá, Navajo Reservation, and the last display of Indian 111
Pueblo Peoples, Tohono O’odham Nation, and the constitutional treaties from the United States
101
106
109
limbo within the United States
Indigenous rights and the treaties between Mexico and the United States
119
125
American citizenship and indigenous standing
130
Indian polities and the United States: From constitutional limbo to a so-called self-determination policy
Born citizens and native rights
133
138
The Arizona Territory and Arizonan polity
141
Indian Territory and American State: Oklahoma and New Mexico-Arizona 144
Arizona federated: Union powers over Indian reservations
148
Reservations and state constitutions contrasted
151
Among histories and rights: legal domesticity and constitutional legality
160
Toward a post-colonial world: out of primitive law of nations and far away 167
Beyond minority: current human rights
174
Non-indigenous constitutions and indigenous entitlements
177
Epilogue
184
Index
195