Document Type


Publication Date

Summer 2014


Native Americans


Civil Rights and Discrimination | Indigenous, Indian, and Aboriginal Law | Law and Race


When thinking about "who counts," I initially titled this Essay: "Who is Counting and for What?" I wanted to highlight the role that power necessarily plays in the very asking of the question. It presumes a perspective, and interrogating that perspective can only occur if the second part of the question is answered. Because race has always played a critical role in our culture from the very beginning, I wanted to explore one of the many ways it has been deployed to justify a particular expression of power. The story virtually every American learns is the story of the inevitable continental expansion of the American Nation. It is not told as a story of coming to terms with a form of internal colonization filled with contradictions, complications, horrors, and graces.

What is clear is that racial ideas are woven through the story of our national identity. That identity emerged as a series of oppositions in which race figured prominently, not just in the slave trade, but in the very conquest of the continent and beyond.

Unlike Latin America, we do not have a detailed philosophical tradition exploring the question of whether Indians "count" as people with souls worth saving. Instead, we supplied a political answer that was premised on exclusion, but which was also informed by pre-existing ideas of racial hierarchy that used to justify treating Indians like political communities suitable of recognition framed by the law of nations. It would also be used, however, to strip these tribes of autonomy, resources, and humanity. Indians, whether in tribes or individual, would count in different ways but always for the purposes of the one doing the counting.

Publication Citation

Published in: Saint Louis University Law Journal, vol. 58, no. 4 (Summer 2014).