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Article

N. Bruce Duthu

United States law recognizes American Indian tribes as distinct political bodies with powers of self-government. Their status as sovereign entities predates the formation of the United States and they are enumerated in the U.S. Constitution as among the subjects (along with foreign nations and the several states) with whom Congress may engage in formal relations. And yet, despite this long-standing recognition, federal Indian law remains curiously ambivalent, even conflicted, about the legal and political status of Indian tribes within the U.S. constitutional structure. On the one hand, tribes are recognized as sovereign bodies with powers of self-government within their lands. On the other, long-standing precedents of the Supreme Court maintain that Congress possesses plenary power over Indian tribes, with authority to modify or even eliminate their powers of self-government. These two propositions are in tension with one another and are at the root of the challenges faced by political leaders and academics alike in trying to understand and accommodate the tribal rights to self-government. The body of laws that make up the field of federal Indian law include select provisions of the U.S. Constitution (notably the so-called Indian Commerce Clause), treaties between the United States and various Indian tribes, congressional statutes, executive orders, regulations, and a complex and rich body of court decisions dating back to the nation’s formative years. The noted legal scholar Felix Cohen brought much-needed coherence and order to this legal landscape in the 1940s when he led a team of scholars within the Office of the Solicitor in the Department of the Interior to produce a handbook on federal Indian law. The revised edition of Cohen’s Handbook of Federal Indian Law is still regarded as the seminal treatise in the field. Critically, however, this rich body of law only hints at the real story in federal Indian law. The laws themselves serve as historical and moral markers in the ongoing clash between indigenous and nonindigenous societies and cultures still seeking to establish systems of peaceful coexistence in shared territories. It is a story about the limits of legal pluralism and the willingness of a dominant society and nation to acknowledge and honor its promises to the first inhabitants and first sovereigns.

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The history of Muslims in America dates back to the transatlantic mercantile interactions between Europe, Africa, and the Americas. Upon its arrival, Islam became entrenched in American discourses on race and civilization because literate and noble African Muslims, brought to America as slaves, had problematized popular stereotypes of Muslims and black Africans. Furthermore, these enslaved Muslims had to re-evaluate and reconfigure their beliefs and practices to form new communal relations and to make sense of their lives in America. At the turn of the 20th century, as Muslim immigrants began arriving in the United States from the Middle East, Eastern Europe, and South Asia, they had to establish themselves in an America in which the white race, Protestantism, and progress were conflated to define a triumphalist American national identity, one that allowed varying levels of inclusion for Muslims based on their ethnic, racial, and national backgrounds. The enormous bloodshed and destruction experienced during World War I ushered in a crisis of confidence in the ideals of the European Enlightenment, as well as in white, Protestant nationalism. It opened up avenues for alternative expressions of progress, which allowed Muslims, along with other nonwhite, non-Christian communities, to engage in political and social organization. Among these organizations were a number of black religious movements that used Islamic beliefs, rites, and symbols to define a black Muslim national identity. World War II further shifted America, away from the religious competition that had earlier defined the nation’s identity and toward a “civil religion” of American democratic values and political institutions. Although this inclusive rhetoric was received differently along racial and ethnic lines, there was an overall appeal for greater visibility for Muslims in America. After World War II, increased commercial and diplomatic relations between the United States and Muslim-majority countries put American Muslims in a position, not only to relate Islam and America in their own lives but also to mediate between the varying interests of Muslim-majority countries and the United States. Following the civil rights legislation of the 1950s and 1960s and the passage of the Immigration Act of 1965, Muslim activists, many of whom had been politicized by anticolonial movements abroad, established new Islamic institutions. Eventually, a window was opened between the US government and American Muslim activists, who found a common enemy in communism following the Soviet occupation of Afghanistan in the 1980s. Since the late 1960s, the number of Muslims in the United States has grown significantly. Today, Muslims are estimated to constitute a little more than 1 percent of the US population. However, with the fall of the Soviet Union and the rise of the United States as the sole superpower in the world, the United States has come into military conflict with Muslim-majority countries and has been the target of attacks by militant Muslim organizations. This has led to the cultivation of the binaries of “Islam and the West” and of “good” Islam and “bad” Islam, which have contributed to the racialization of American Muslims. It has also interpolated them into a reality external to their history and lived experiences as Muslims and Americans.