"The Myth of Indigenous Americans' Sovereignty"

M. R. Mulford©

It is with this in mind that we investigate the state and concept of sovereignty as it applies to the Autochthonous American tribes. The question of Indian sovereignty is one which is under serious review today. There are many conflicting viewpoints. There are discussions under way from the halls of Congress to the offices of the American Indian Movement (A.I.M.). The outcome of these debates will impact the country for years to come. There is a need to understand what is at issue here. The purpose of this paper is to assist in gaining that understanding.

The first task is to get a handle on the term sovereignty. Webster's New 20th Century Unabridged Dictionary defines it as "supreme and independent political authority."(7) This is certainly a good working definition, but it does not provide a feel for the concept in practice. Further, this concept must also be examined in the context of international relations. For, although historical influences and social constructs may be germane, it is necessary to meet the realities of today's political world and its requirements in any discussion of sovereignty. Better comprehension of sovereignty can be obtained by looking at the foundations and characteristics of sovereignty.

There are several guidelines for sovereignty. The first is land. In order to be sovereign, there must be a territorial base and the authority over that territory must be recognized at the international level as exclusive. Another requirement is that the territory must be occupied by people, Antarctica is unoccupied and, although it has land, the lack of people removes it from consideration for sovereignty. Further, there must be an organized government that consists of specific officials who are recognized to be in a position to speak for that territory and people. It also must be civilized enough to take on its international responsibilities and have contact with other political entities. Lastly, it must be sovereign.(8) As the theoretical basis for this, we may consider Bodin's dictum applicable. It states, "Majestas est summa in cives ac subditos legibus soluta potestas" (Sovereignty is supreme power over citizens and subjugated people and is bound by no other law).(9)

One of the fundamentals of sovereignty is constitutional separateness. That is, there can be "absolutely no containment, however tenuous, within any outside or other constitutional framework. A territory so contained is not sovereign".(10) Constitutional independence consists of three features. The first feature is legal. Constitutional independence must be founded on law. It may not be subordinate to the law of any other authority. No other state can exercise jurisdiction or speak for it in international relations. It must also be able to defend itself by force of arms. Next, it must be absolute. There can be no higher internal authority to which to appeal. This was the crux of the state's rights conflict, which was a cause of the American Civil War. And, lastly, it must be unitary. If the laws of another state automatically apply in a second state, the second state is subordinate to the first and is not sovereign. This also applies if the first state conducts all the international relations or dealings for the second. Even if this second state is called 'sovereign', it is not.(11) "Sovereignty is a zero sum game." If someone else can impose their will on you unilaterally, you are not sovereign. There is an exception to the last requirement. The exception is that a state which by treaty with another is under the protection of that other state, but not subject to the protector's constitution, may be considered sovereign.(12)

A state can lose its sovereignty through a number of processes. It can be annexed or partitioned by a more powerful neighbor. The classic example of this is Poland, which has been annexed or partition several times. The state can voluntarily request to be subsumed into another state; as in the situation of the Republic of Texas and the United States. It can also be conquered by force of arms.(13)

Recently, there have been some changes in sovereignty's requirements. As pointed out above, most sovereign entities are required to be able to defend themselves. However, this is no longer completely true. The perfect case in point is Kuwait. Even though it was overrun by Iraq, rescued by a coalition of states (primarily the U.S.) and, even now, could not withstand another Iraqi invasion, it is still sovereign due to constraints placed on Iraq and the fact that the will and consensus of the international community make it so. Another change involves the concept of self-determination of peoples. Many of the states of the colonial empires are products of this, although they would not qualify for statehood in classic terms. The term 'self-determination of peoples' is a slippery one, but it is the basis for the new sovereignty of ex-colonial liberation. However, this principle has been applied neither on a universal nor equitable basis, as can be seen in the circumstances of the Kurds, Sikhs, Igbos, etc. (14)

Before applying the heightened understanding of sovereignty we have gained, it is necessary to briefly review the historical interaction of the whites and the Indians in the context of sovereignty. It is commonly held that the first political interactions between the Native Americans and the imperial powers were based on mutual recognition of territorial sovereignty. The "Two Row Wampum" Treaty between the English and the Iroquois Confederacy (Haudenosaunee) is the paradigm of this school of thought. In fact, it is argued, it was the British attempts to prevent the new settlers in America from encroaching on Indian land that was one of the factors that led to the Revolutionary War. (15) Unfortunately for the Indians, this recognition was not always the guiding force behind the European actions. The European monarchs extended land grants in the Americas without regard for Indian lands, used one tribe against the other and the tribes against the settlers (even as the Iroquois were playing the French off against the British), viewed the Native Americans as homeless, nomadic, pastoralists or as hunter-gatherers, and engaged in war against them given the slightest or even no provocation.(16) Benjamin Franklin said: "...it appeared to me that almost every war between the Indian and the whites has been occasioned by some injustice of the latter towards the former."(17) A further problem was the belief that developed that treaties with the Indians were not binding on the whites because the Indians were savages. Andrew Jackson is quoted as saying, "I have long held treaty making with the Indians an absurdity."(18) Of course, the corollary that the treaties were not binding on the Native Americans was not considered to be valid.

With the founding of the U.S., things just got worse. On the one hand, in negotiations and when in contact with the Indians, the government representatives would assure them that the new treaty would be perpetual.(19) On the other, the U.S. was planning the next war, discussing ways to force the Indians west, and ignoring the treaties already signed.(20) It seems ironic that as he was propounding liberties and freedoms for the United States, Thomas Jefferson was developing plans to move the Native Americans west as the population of the U.S. grew.(21) In addition, all of the treaties contained a stipulation which gave the power to amend them unilaterally, to Congress. This makes these a type of treaty called a "capitulation treaty" When used in a context where one of the parties to the treaty is neither conversant with the language in which the treaty is written nor could be expected to understand the meaning or import of it; or if approval of the treaty is coerced, the treaty might be considered to be fraudulent or invalid.(22) Throughout, the period of treaty making between the Indians and the U.S., the U.S. was consistent in negotiating in bad faith, perpetrating fraud through various means and engaging in unprovoked war against the Autochthonous Americans.(23)

After treaty making with the Native Americans ended by Congressional fiat in 1871, Indian sovereignty was a dead issue as far as the government was concerned. The Congress passed laws imposing regulation on the Indians, forcing them to remain in concentration camps which were called reservations,(24) and expropriating their land, with laughably inadequate, or no, compensation. They denied the Indians the constitutional protection of citizenship, even though they were born here (it is possible, of course, that the Indians did not wish to become citizens), then, at their whim, they provided citizenship to the Native Americans, willy-nilly. The B.I.A. commissioner in 1952, D. S. Meyer, summed up Congress' attitude perfectly when he wrote: there was a "...strong expression of interest by the Congress based on a hasty assumption about what was good for the Indians and a more calculating assumption about what was good for the whites; the policy phrased in rhetoric evoking images of the Declaration of Independence and the Sermon on the Mount; instruction to the Executive to carry out the policy on pain of financial cutbacks or administrative extinction; and an unspoken assumption that the Indians could be cajoled, forced, frightened, or persuaded into recognizing the benevolent intent of the framers."(25) The courts simply said that, constitutionally, it was a Congressional matter and if the Indians felt that there was an injustice done, they should seek relief through Congress since the constitution gave Congress plenary power over Indian affairs.(26) Incredibly, Indians were not even considered to be people before the courts, until a ruling by Federal Appeals Court judge, Elmer Dundy, in 1878, thirteen years after the ratification of the 14th Amendment to the U.S. Constitution guaranteeing equal protection under the law.(27)

Congress has passed laws unilaterally which have affect on the Autochthonous Americans, their tribes and their lands. In particular, the Dawes Severalty Act and the termination legislation of the Fifties were aimed at the dissolution of Indian tribes, the dispersion of Native Americans, the relief of federal government obligations under pre-existing treaties and the total assimilation of Native Americans into the American mainstream. The result of Congressional action, Supreme Court acquiescence and Executive regulations was the near annihilation of the Native Americans.

The assault on their sovereignty, which was guaranteed by treaty, was recognized by numerous Native Americans. In the mid-1800s, Ely Parker, a Seneca, grasped the full import of the loss of Indian sovereignty and he expressed his outrage by saying that he "...accused the federal government of inconsistent treaties and duplicitous behavior." The government had "...led the Indians to believe they were considered independent nations, when they were really treated as helpless, ignorant wards of the government. The Indian Tribes of the United States are not sovereign nations...." He ends by demanding that the government should "...stop feigning this and deal honestly."(28) This realization prompted Mr. Parker and the Tonowanda Seneca to make the land purchase to which Ms. Charles referred.(29) Black Hawk, a Lakota, also understood that the whites were not honoring their word. He contrasted whites and Indians by saying that whites were deceitful and that if an Indian were to be like a white, he wouldn't be allowed to live, because Indians did not lie, cheat or steal.(30) More recently, Clyde Bellecourt asserted that the U.S. guaranteed sovereignty by treaty, but has a history of breaking treaties, whether with the Native Americans or with others.(31)

Other Autochthonous Americans have fought the onslaught of white domination by using the courts. Lamentably. the courts have held against them consistently. In the U.S. v. Kagama, Chief Justice Miller said, in essence, that the ward-guardian relation of the Indians to the government is legitimate because the court says it is. Also, the concept of domestic, dependent nations posits internal sovereignty, but loss of external [my emphasis] sovereignty through dependency. In Lone Wolf v. Hitchcock, the court held that Congress can, unilaterally, abrogate treaties since it has the plenary power set out in Kagama, above.(32)

There has been something of a change in the court's attitude and decisions since the 1920s. The change reflects the changing attitudes of the Congress, since the court consistently defers to Congress in the relations with Native Americans.(33) Particularly since the Fifties, more decisions are being made that favor the Native American litigants. In 1946 the court began hearing cases of land claims against the government. However, it limits recovery to the value at the time the land was illegally expropriated and it holds that allowance for recovery is a "matter of grace."(34) The court is also more frequently upholding Indian autonomy in reference to state and local governments.(35) But, there has been no reversal of or change in the court's stand on the matter of the superiority of the Congress or federal government in relation to the Indians. Moreover, a ruling in the Eighties said that the government did not need to show a "compelling interest" to interfere in Native American religious practices or sacred lands, thereby gutting the American Indian Religious Freedom Act.(36) Justice Felix Cohen, in Federal Indian Law, propounded the theory that "...Conquest [my emphasis] renders the tribe subject to the legislative power of the United States, and, in substance, terminates the external powers of sovereignty of the tribe, e.g., its power to enter into treaties with foreign nations, but does not, by itself, affect the internal sovereignty of the tribe, i.e., its power of local self-government.(37) Basically, his interpretation is 'might makes right.'

The Congress has always had a problem with consistency of policy towards the Indians. In just the 20th century, they have alternately attempted to force assimilation or mandated separation. They have legislated self-government and termination for the reservations. Incredibly, they have been trying to do what they have considered to be, in the best interests of the Native Americans. What has happened is that the steps that they have taken constantly run into the law of unintended consequences. Nothing they have attempted turns out the way they thought it would. And, usually, the results are negative. Under the Dawes Act, they thought that giving farms to the Indians and helping them to be farmers, would set them on the road to being the typical American yeoman farmer. Needless to say, that was an unmitigated failure for the Indians. Then, they tried to give them representative democracy under the IRA. But, the Indians had little desire to institute for themselves a system which mirrored the one that had caused their degradation. After that, it was back to assimilation, only this time the thrust was to lure them to the cities and terminate the reservations.(38) Only in the Sixties did the government begin to take cognizance of what the Native Americans wanted, needed or considered appropriate. One of the planks of the Nixon platform in 1968 was a repudiation of the termination policy(39) and the promise of action on Indian self-determination. The Indian Self-Determination and Education Assistance Act of 1975, gave the tribes rights similar to states and more independence to take control of their nations.(40) The Abourezk Committee asserted the ultimate sovereignty of the tribes, but no action was taken on the committee's recommendations.(41) It is, of course, difficult to conceive of the Congress doing anything that would diminish the power of the government significantly.

In recent years there has been a resurgence of interest in the issue of autonomy among the Native Americans. In the winter of 1966-67, President Johnson asked Native Americans to come to DC to signal their approval of the Omnibus Bill that initiated new action on Indian affairs. It was to be a strictly ceremonial visit and a rubber stamp approval. When the tribal representatives arrived in Washington, not only did they not approve the bill, but they called on the government to treat Indians as colonial nations. That action would invoke the UN Charter definitions on self-determination and cause all manner of ramifications. Needless to say, the government declined to take that step. At the time, Chief Sundown of the Seneca said, "The Indian has always kept his word. Has the white man ever kept his? Not a bit. I can't understand the difference between the government of the United States and the government of a state. One is the Mafia and the other is an 'Appalachian Meeting.' Both are crooked.(42) In 1973, the clarion call of A.I.M. during the takeover at Wounded Knee was for unrestricted Indian sovereignty.(43) Clyde Bellecourt, founder and national director of A.I.M, insists that the U.S. needs to honor the guarantees of sovereignty granted to the Indians by treaty. He believes that they have a right to self-determination and the right to decide their own future, free from the interference of the U.S. government. He also concludes that Indian land should constitute independent, internationally recognized nations.(44) Oren Lyons, a chief of the Haudenosaunee, agrees. His definition of sovereignty is the "...ability for a nation to determine for themselves, what their life will be."(45) His influence and that of the other chiefs of the Haudenosaunee has been exerted in the effort to maintain and extend the autonomy of their nation.

However, not all Indians concur. This disagreement among Native Americans has been one of their most serious shortcomings in dealing with the whites. Their inability to present a united front against the inexorable tide of white expansion has been part of the tragedy of the Autochthonous Americans. Ms. Charles of the Seneca, does not think that independence would be a good idea and she accepts the overlordship of the federal government. She foresees economic hardship and difficulties due to the scattered nature of the Indian lands should they become truly sovereign.(46) The conflict at Wounded Knee in 1973, was, in part, a dispute between factions of the Lakota tribe. One group, led by A.I.M., was attempting to assert the prerogatives of sovereignty, while the other, represented by the elected council of the Oglala, an offspring of the IRA of 1934, was trying to maintain its power.(47) That is, the council was supporting the idea of dependency. Currently, in Hawaii, there are some Native Hawaiians that want an independent, sovereign state and some that are opposed.(48) On few occasions has a strong leader been able to assemble any kind of coordinated action. Militarily, there was Tecumseh and Pontiac in the early 1800s and Sitting Bull later. Unfortunately, not even these great leaders could hold together their coalitions long enough to be effective.(49) Coincidentally, the U.S. has usually been able to take full advantage of this lack of unity. Examples such as the Treaty of New Echota with the Cherokee,(50) the situation at Wounded Knee in the Seventies,(51) and the negotiations which led to the ANCSA(52) show the kind of problems that can result from this internal conflict. The tendency to independent action may be a cultural bias resulting from deep beliefs and the Native American accent on consensus or it may spring from some other font. Whatever its origins, it has cost them dearly.(53)

However, there is some cause for optimism on this issue. There has been a weakening of internal tribal bonds over time which has been caused by the government's treatment. This has led to a strengthening of the ties across tribal lines, contributing to the development of a pan-Indian nationalism.(54) More recently, this trend toward 'Red Power' has been abetted by the computer revolution. Ironically, one of the primary links in this process is Internet, the government's computer network.(55)

The view of the U.S. government, whether Congress, the courts or the Executive, is that the Native Americans constitute dependent, domestic nations and, while they have relinquished external sovereignty, still retain internal sovereignty. This separation of sovereignty into two parts, as we can see from applying the criteria listed above, is an invalidation of the basic concept of sovereignty and thus, a form of double-speak which has no meaning. It denies two of the conditions for the constitutional separateness that is the basis of sovereignty. First, the idea that constitutional separateness is unitary is violated. Congress' ability to unilaterally impose laws on the Native American tribes is the crucial element in the negative application of this principle. And secondly, the legal aspect is also contravened. The ability of the U.S. to exercise jurisdiction over and speak for the Indian tribes internationally is the factor that applies in this arena. Although the Indian tribes may have autonomy from state and local interference, and this is far from the facts in a number of cases, their subjugation to Congressional plenary power is sufficient to negate any claims that anyone might forward that they are sovereign nations.

The tribes contend they have been promised autonomy, but, they argue now, it is a chimera, since they are still subject to the federal government.(56) However, many believe that they are sovereign nations as defined under international guidelines, but, that sovereignty has been illegally usurped by the government of the U.S. This has led to continuing actions on the part of the Native Americans to assert their sovereignty, to gain additional autonomy and to work toward the establishment of true sovereignty as soon as possible. Some think that the internal sovereignty they have is sufficient and are content to continue as they are, with some changes.

Given the foregoing, it is obvious that either the use of the word sovereignty to describe the powers of the Native Americans today is a change in that word's definition, that its use is a cynical attempt on the part of the U.S. government to convey more than they are willing to grant, or it is being used as a convenient fiction to abet the self-delusion of both the government and the Indians. Whatever the case may be, we must conclude that, as the world currently views sovereignty, Native Americans do not possess it. It is likewise hard to believe that there will be a time in the foreseeable future when either the U.S. will be willing to grant that independence or the Indians will be able to wrest it from them. The likeliest outcome is that there will be continued conflict over the issue. The Autochthonous Americans will probably make some gains in asserting their rights to self-determination, but, the current situation will remain substantially unchanged for a long time to come.

Notes

(2)"The 64,000 Acre Question."(Videotape) Rochester, NY: WXXI, 1983.

(3)"Winds of Change: A Matter of Promises."(Videotape) Pacific Arts Video Publishing, 1990.

(4) Bellecourt, Clyde. Personal interview, December 6, 1993.

(5)Charles, Ramona. Question and Answer Period, Tonowanda Seneca Reservation, NY, October 27, 1993.

(6)Vanderpo, Tim. "Confiscating Dignity." Progressive 56.9 (1992): 12.

(7)McKechnie, Jean L.; et al. Webster's New Twentieth Century Dictionary of the English Language: Unabridged. 2nd Ed. NY: Prentice Hall Press, 1979; 1736.

(8)James, Alan. Sovereign Statehood: The Basis of International Society. London: Allen & Unwin, 1986; 13.
Pearcy, G. Etzel. World Sovereignty. Fullerton, Ca: Plycon Press, 1977; 2.

(9)James, Alan; xi.

(10)James, Alan; 24, 29.

(11)James, Alan; 39-40, 44, 46, 50
Pearcy; 2.

(12) Pearcy; 22.

(13) James, Alan; 92.

(14)Jackson, Robert H. Quasi-states: Sovereignty, International Relations and the Third World. Cambridge: Cambridge University Press, 1990; 41.

(15)Worcester, Donald Emmet. Forked Tongues and Broken Treaties. Caldwell, Id: Caxton Printers, Ltd., 1975; xviii.

(16)Washburn, Wilcomb E. Red Man's Land/White Man's Law: A Study of the Past and Present Status of the American Indian. NY: Charles Scribner's Sons, 1971; 29-30, 36, 38

(17)Worcester; xx.

(18)Ibid.; xviii-xx.

(19)Fitzgerald, N. "Disputed Land." Scholastic Update 121.18 (1989): 8: 11.

(20)Op Cit.; 9,12.

(21)Ibid.; 13, 17.
I also find it ironic that Mr. Clinton's pride in being named after Mr. Jefferson is so great, given these circumstances.

(22)Jackson; 62, 69.

(23) Worcester; 23-24, 52, 72, 181 278.
Deloria, Vine; Lytle, Clifford. American Indians, American Justice. Austin, TX: University of Texas Press, 1984; 5.
Bellecourt.

(24)Charles.

(25)Washburn; 85.
Although the memo noted is based on the Eisenhower policy of termination, it could well be applied to almost any era of U.S.-Indian relations.

(26)Washburn; 59-60, 66,72-74,79, 85,103, 171, 182.
U.S. Constitution:Art. I, Sec. 8.
Rusco:1991)Rusco, E.R. "John Collier: Architect of Sovereignty or Assimilation?" American Indian Quarterly 15.1 (1991):49-53.

(27)Rosenstiel, Annette. Red & White: Indian Views of the White Man. NY: Universe Books, 1983; 109-110.

(28)Ibid.; 135.

(29)Charles.

(30)Op Cit.; 118.

(31)Bellecourt.

(32)Wilkins, David E. "Transformations in Supreme Court Thought: The Irresistible Force(Federal Indian Law & Policy) Meets the Movable Object(American Indian Tribal Status)." Social Science Journal 30.2 (1993):181-202 (specifically, 195-196).

(33) Ibid.

(34)Washburn; 103,114.

(35)Deloria and Lytle; 24-25,53-55.

(36)Rayl, A.J.S. & Bleck, Cathie. "New Technologies, Ancient Cultures." Omni 15.10 (1993): 46-51.

(37)As quoted in "Staff Memorandum: Constitutional Status of American Indians." Washington, DC: United States Commission on Civil Rights, March 1973.
As is apparent, the tribes which allied with the U.S. or signed treaties without hostilities are considered to have been conquered. Further, this implies that the tribes have been reduced to the level of municipalities.

(38)Of course, if termination also had the beneficial side affect of removing the governments burden of treaty obligations, so much the better.

(39)Staff Memorandum. U.S. Commission on Civil Rights.

(40)Rayl & Bleck.

(41) Deloria and Lytle.

(42) Steiner, Stan. The New Indian. NY: Harper & Row, 1968.
Umozurike, Umozurike Oji. Self Determination in International Law. Hamden, Ct: Archon Books, 1972.

(43)Deloria and Lytle:1984.

(44)Bellecourt.

(45)Winds of Change.

(46)Charles.

(47)Deloria and Lytle; 54.

(48)ABC Evening News:11/24/93.

(49)In the case of Sitting Bull and his alliance between the Lakota and the Cheyenne, it was more a case of far too little, far too late.

(50)James, M. Annette. "Federal Indian Identification Policy: A Usurpation of Indigenous Sovereignty in North America." In The State of Native America: A Usurpation of Indigenous Sovereignty in North America. Boston: South End Press, 1992; 61.

(51)Deloria and Lytle; 54)

(52)Chance; 154-164.

(53)James, Alan; xvi.

(54)Steiner.

(55)Rayl & Bleck.

(56)Fitzgerald; 11.

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