A/HRC/21/47/Add.1 14. Looking beyond the constitutional text to historical practice, the colonial era law of nations and reason, the United States Supreme Court established, in a series of early 19th century cases, foundational principles about the rights and status of Indian tribes that largely endure today. Supreme Court doctrine recognizes that Indian tribes are inherently sovereign with powers of self-government; indeed they are “nations” with original rights over their ancestral lands. Within this same body of doctrine, however, the sovereignty and original land rights of tribes are deemed necessarily diminished and subordinated to the power of United States, as a result of discovery or conquest by the European colonial powers or the successor United States. 15. The federal power to regulate commerce with the Indian tribes is thereby enlarged to one that is deemed plenary in nature and that can be used to unilaterally modify or extinguish tribal sovereignty or land rights. This power is also related to and justified by a duty of protection the federal Government is deemed to have over Indian tribes, in a socalled trusteeship. In all, tribes are sovereign nations with certain inherent powers of selfgovernment and original rights, but they are rendered, in words penned by the famous Supreme Court Justice John Marshall, “domestic dependent nations,” subject to the overriding power of the federal Government. 16. While acknowledging positive characteristics of the rights-affirming strain of this judicial doctrine, the Special Rapporteur notes that the rights-limiting strain of this doctrine is out of step with contemporary human rights values. As demonstrated by a significant body of scholarly work, the use of notions of discovery and conquest to find Indians rights diminished and subordinated to plenary congressional power is linked to colonial era attitudes toward indigenous peoples that can only be described as racist. Early Supreme Court decisions themselves reveal perceptions of Indians as backward, conquered peoples, with descriptions of them as savages and an inferior race. 17. At times, however, the Supreme Court and lower courts have been protective of indigenous peoples’ rights by affirming original Indian rights to the extent consistent with operative doctrine, or more often by enforcing treaty terms, legislation, or executive decisions that are themselves protective of indigenous rights. B. The evolution of federal policy and legislation 18. Federal legislative and executive action, in the exercise of the broad authority over indigenous affairs affirmed by the Supreme Court, has evolved over time along with shifting policy objectives shaped by historical circumstances and prevailing attitudes of the time. 19. After achieving its independence, the United States continued the practice that had been established by Great Britain and other colonial powers of treaty-making with Indian tribes. These treaties were means both by which the United States or its colonial precursors acquired land from Indian tribes, as well as means by which the tribes retained rights over lands and resources not ceded. The treaties, moreover, dealt with diverse issues and provided a foundation for the United States’ relations with tribes on the basis of their recognition as nations with inherent sovereignty. 20. Although the United States ceased dealing with Indian tribes through treaties in 1871, after having consolidated its control over the territory it had acquired across the continent, many of the historical treaties with tribes continue in force as part of federal law and to define United States-tribal relations. At the same time, numerous flagrant violations of historical treaties constitute some of the principal wrongdoings committed by the United States towards indigenous peoples, which was a recurring subject of concern raised to the Special Rapporteur during his visit. 7