The Tragedy of Tribal Sovereignty

by Darrel Smith

In Medieval times (sometimes referred to as the Dark Ages), kings were sovereign. Ordinary people were vassals or subjects. People believed that kings had a divine right to rule their subjects. Sovereign immunity (protecting the sovereign from being sued) protected kings, as God’s governmental representatives, from court challenges initiated by their subjects. Actually, absolute sovereign immunity was already being reduced in England as early as 1215 by documents such as the Magna Carta.

After fighting and winning the Revolutionary War against “King George” and the British, Americans totally reversed the concept of sovereignty. American government is based on the concept of popular sovereignty. This concept vests supreme political power in the will of the people. There are many common expressions of this concept such as the state motto, “Under God, the people rule.” In the famous Gettysburg Address, Lincoln described ours as a “government of the people, by the people, for the people.” Instead of the people being subjects of the king, governmental employees are considered “public servants.” Popular sovereignty is why our Constitution starts with the words, “We the People.” The American people as a source of American sovereignty took some of their sovereignty and gave it to the government for necessary functions. This transfer of political power was strictly limited by the Constitution. “We the People” also protected ourselves from governmental abuses by balancing powers between the executive, legislative and judicial branches. We further divided political power between federal, state (with their own divided branches) and local governments.

In contrast, the modern concept of tribal sovereignty is an independent sovereignty of tribal governments not a popular sovereignty of Indian people. Like Medieval kings, tribal governments have largely unchecked, centralized power and are generally protected from being sued. In fact, tribal governments have been given sovereign powers that no other government in America, including the federal government, enjoys. Where do these extraordinary powers come from? Many people will say they have been granted by Congress, and in a sense, they are correct. Indian trust land on reservations is considered “territory” and Article IV, Section 3 of the Constitution gives Congress the right to “make all needful Rules and Regulations respecting the Territory.” Ultimately, however, Congress can seldom grant powers without first taking them from someone else. Tribal governments’ extraordinary sovereign powers have been taken from the people that they govern; primarily from the popular sovereignty of Indian people. It isn’t surprising that American Indian citizens on reservations live without the most basic Constitutional guarantees. As Minnesota Appeals Court Judge R.A. (Jim) Randall has noted in a legal opinion:

“It is not known to all reading this opinion that the following list of state and federal constitutional guarantees and rights are not in place for Minnesota Indians domiciled on a reservation: There is no guarantee that the Minnesota Constitution, the United States Constitution and its precious Bill of Rights will control. There are no guarantees that the Civil Rights Act, federal or state legislation against age discrimination, gender discrimination, etc. will be honored. There are no guarantees of the Veteran’s Preference Act, no civil classification to protect tribal government employees, no guarantees of OSHA, no guarantees of the Americans with Disabilities Act (1990), no guarantees of the right to unionize, no right to Minnesota’s teacher tenure laws, no right to the benefit of a federal and state “whistleblower” statutes, no guarantees against blatant nepotism, no guarantees of a fair and orderly process concerning access to reservation housing, and no freedom of the press and no freedom of speech.

“In other words, all the basic human rights we take for granted, that allow us to live in dignity with our neighbors, are not guaranteed on Indian reservations under the present version of ‘sovereignty.'”

The modern concept of tribal sovereignty involves a great transfer of political power from Indian citizens to their largely unaccountable tribal governments.

The transfer of sovereignty from Indians to tribal governments was imposed on reservations by the federal government starting with the Indian Reorganization Act of 1934. This Act was promoted by John Collier, the Commissioner of Indian Affairs at the time, as a grand social-political experiment. Collier and others expected reservations to become “a model of community that all Americans might in some ways follow… because he wanted Indians to offer an alternative way of living for individualistic-oriented white America.” Collier continued to demonstrate his preference for powerful centralized government and the communal ownership of assets when he praised an idealized version of communism in Red China in his book, From Every Zenith. published in 1963. America’s reservations have become demonstration models; demonstrating the opposite of what Collier expected.

Not only is the transferal of sovereignty from American Indians to tribal governments a great reversal of the most basic American concepts established during and after the Revolutionary War, it is also a violation and reversal of the vast majority of Indian traditions. Before being affected by White concepts of government, most Indian societies were characterized by weak tribal governments and high levels of individual freedom. Most Indians lived largely in autonomous bands. Individuals that were dissatisfied with these bands were free to join another band or form a new band. Only very rarely did most tribes act with strong centralized authority. As one chief said. “we are a dispersed people, and have no regular system of acting together.”

Confronted with this betrayal, hundreds of thousands of Indians have done the same things their ancestors might have done. In fact, the same thing the pilgrims did, and other people all over the world do, when confronted with tyrannical, oppressive governments. They voted with their feet. In 1990, almost 1,960,000 people classified themselves as Indian. Only 447,400 of them, or less than twenty-three percent, still live on Indian reservations. They have chosen to leave their families, friends, culture, lands, and the many federal, state, local and private benefits provided on reservations. They have chosen a new life off the reservation. As soon as they step outside of the reservation boundaries they have the full protection of the federal and state constitutions and laws.

Tribal sovereignty diminishes the rights of Indian Americans, hundreds-of-thousands of non-Indians who live on reservations, and millions of others who are affected by tribal governments. Federal Indian policy, modern tribal governments and the concept of tribal sovereignty violate the most basic principles of the American Revolution and also the vast majority of early Indian traditions. We can’t grant popular sovereignty to Indian people without reducing the current exalted sovereign status of tribal governments. Fortunately, conveying popular sovereignty to American Indians would also return traditional concepts of Individual freedom and dignity to Indians. As Judge Randall also noted. “[T]his country, has the power and the legal right to protect any and all parts of Indian identity, culture, tribal assets, self-determination, religion/spirituality that needs to be protected, and yet do it all within the framework of treating American Indians like we treat ourselves, as normal citizens of this state, of this country. The real issue is, do we have the will?” Granting popular sovereignty and equal constitutional rights to reservation residents is the last truly great civil rights struggle in this country.

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