by T. David Price, Author of The Second Civil War. All rights reserved. Copyright 1999.
Sovereignty is Political Power. It is The Power to Make and Enforce Rules and Laws.
In the United States we are dedicated to preserving the principles of liberty and equality for every American citizen. To do this we provide every person with equal access to the government and the law, as well as the economic, social and physical landscape. This is political sovereignty. We also protect the liberty of every individual to think and act according to the dictates of his conscience, religion or culture. This is cultural/religious sovereignty.
Democracy as we know it cannot exist without a delicate balance between the principles of cultural/religious and political sovereignty. Cultural/religious sovereignty protects our right to live without undue interference from the government or from groups of people who do not agree with our lifestyle. When people practice religion they can believe whatever they chose. We can worship one god, many gods, no god, or the devil. Culturally, we can make the woman the head of the household, the man, or have the man and woman share domestic power equally. Cultural/religious sovereignty protects our right to be as different as we choose without undue interference from anyone else. Cultural/religious sovereignty is discriminatory, groups practicing cultural/religious sovereignty can decide who is or is not a member. Without cultural/religious sovereignty there would be no cultural diversity because people could be forced to think, behave and associate in a manner proscribed by the ruling group.
Political sovereignty cannot be given exclusively to any particular group in our culturally diverse nation. To do so would create a ruling group that could interfere with the civil rights of anyone who was not a member. All general governmental functions are equally accessible to people regardless of their cultural, religious, ethnic, sexual or other status. Anyone can vote, hold office, practice law, or speak out against injustice. General government (political sovereignty) must be accessible to people of any group but must not dictate the beliefs or prejudices (religious, cultural etc.) of any particular group of people. Government by the people means the human race, not any particular race or culture. Political sovereignty is nondiscriminatory; everyone who is an American citizen has the right to participate in the government.
Cultural/religious sovereignty allows people to form groups and to practice limited governmental power within that group. A religious or cultural group can form a constitution or by-laws and require the members of the group to abide by those laws or rules. The Amish, for instance, could have a ruling council of elders that decides group mores such as the length of women’s skirts or what mode of transportation is allowable when going to town (foot or horse) or the hospital emergency room (any method). The Amish cannot impose their rules or laws upon people who are not part of their sect and they cannot be the general governmental power in a geographical area. The Amish cannot form a government for Wright County, Minnesota.
Cultural/religious sovereignty allows groups to live as they please (liberty) even if their culture, religion or belief system is sexist, racist, or in any other way intolerant of others. But this sovereignty is applicable only to the internal relationships of the group members. General governments (political sovereigns) cannot exclude people based on their group status and also cannot discriminate against anyone based on group status. Political sovereignty also requires that the economic, educational, geographic and natural resources of the United States are equally accessible to everyone regardless of their group status. Thus housing, land, natural resources, jobs and public education cannot be denied to anyone based on cultural, religious, philosophical or other group status.
Indian policy and law defies the democratic principles of liberty and equality by giving Indians as a group political sovereignty. Indians say that they must have political sovereignty in order to protect their unique culture and religion. This argument was valid for much of the history of the United States when the dominant White Christian society tried to force Indians to assimilate into society. A primary example of assimilation was sending Indian children to missionary schools where they were forced to adopt Christianity and the dress and culture of White European society.
It is essential to note that slavery, Black segregation, the forced assimilation of Indians into White Christian society and the subjugation of women are all examples of giving political sovereignty to White males in America. In the 19th and 20th centuries the courts and legislature of the United States gradually came to realize that political sovereignty cannot be given to any one group (i.e. White males) without violating the most basic principles of the U.S. Constitution.
Since the landmark Supreme Court case of Brown vs. the Board of Education in 1954 (347 U.S. 483) and the Civil Rights Act of 1964 it has been recognized that discrimination, segregation and forced assimilation are unconstitutional. The hallmark of this new attitude is the concept of integration, which mandates that no matter how different you are (Indian, female, Amish, etc.) you must have equal access to the law and the social and economic landscape. Integration is the legal concept that allows cultural diversity to exist within a nation. Contrarily, assimilation allowed Indians access to the benefits of American society only if they adopted the culture and religion of the predominant White Christians.
Integration is the law of the land. Indians and Indian tribes are protected by cultural/religious sovereignty in the same way every other culture or religion is protected in the U.S. The Constitution sees all cultures and religions as equally unique under the law. To allow Indians as a group to practice political sovereignty as a general government ruling non-Indians or a geographical territory is wrong. It is as wrong as every other form of 18th and 19th century discrimination.
Indian Tribes counter this argument by saying that the Supremacy Clause of the Constitution puts treaties on equal footing with the Constitution. In other words, one cannot overrule the other. The Supremacy Clause (Article VI) reads:
This Constitution, and the laws of the United States which shall be made in pursuance thereof-, and all Treaties made … shall be the supreme Law of the land…
The Supreme Court has ruled that in cases of conflict between constitutional rights and treaties the Constitution overrules. In the case of Reid v. Covert in 1957 (354 U.S. 1) the Supreme Court stated that “the United States is entirely a creature of the Constitution. Its power and authority have no other source. …Accordingly, a President may not negotiate away the civil liberties of American citizens through treaty power.”
It is wrong to assume that defining Indian Sovereignty under the guidelines of the U.S. Constitution is an attempt to extinguish Indian tribal sovereignty. The Constitution protects Indian tribal sovereignty on equal footing with the sovereignty of every other group. For all Americans cultural/religious sovereignty is inherent and predates the Constitution – we all have an inherent right to be unique. Being an integrated American does not detract from anyone’s ability to live the lifestyle of a unique culture or religion. In a government of the people everyone must have equal access to sovereignty, both cultural/religious and political. This means no single group can claim the right to political sovereignty to the exclusion of any other group. For example, Catholics can’t deny Protestants the right to vote in city elections. Finally, no group can deny the right of cultural/religious sovereignty to any other group; thus Protestants can’t prevent Catholics from practicing Catholicism. Without this balance, democracy ceases to exist.
This article was revised with permission from the author on Oct. 29, 2000 by substituting the words “cultural/religious” for the original word “internal” and the word “political” for the original word “external.”