My Federal Indian Law & Policy course had us investigating issues of tribal sovereignty this week. I decided to post my response to our discussion questions here because I found a lot of things in the reading that really explained why this concept is so important and supported the general argument for continued tribal sovereignty. I found the most compelling arguments to be from Mark A. Chavaree, Esq. in his closing “philosophical standpoint” on tribal sovereignty. I used other quotes from him below, but also wanted to share one more quote here:
“The laws, effected through court cases, congressional action and federal policy. . . recognize the uniqueness and separateness of Indian people and the sovereign powers of their governments. It is interesting that when such rights become an inconvenience for the states and their non-Indian citizens they question the justification for Indian people possessing these special powers.”
How do you define "tribal sovereignty?"
I define this term as the rights of an indigenous group to have self-government of their territories, which can include people, land, and natural resources such as animals or minerals.
Where did it come from?
It is an inherent right from pre-contact time. As it says in the reading from “The Treaties”:
"Before European occupation, tribes had complete sovereign power over their territory."
Why is it important?
The second reading from the American Indian Policy Center ended by saying,
"…the fact remains that Indian people are not just another racial minority group – they are a people who have retained a unique aboriginal status."
Although this may sound obvious, it doesn’t seem to be truly understood by many non-native American citizens. I think many people feel confused by this idea and wonder why Indians have a need to remain separate from mainstream American culture. The article by Mark A. Chavaree from Wabanaki Legal News really dug into this issue when he said that,
"This idea runs counter to the idea of the great melting pot, but it is a fundamental characteristic of Indian people. It finds its basis in the differing worldview of Indian people."
The whole concept of America as a melting pot was formulated by the people in power, not by the original inhabitants. If American Indians were subject to the colonization and re-appropriation of their lands, doesn’t that immediately make them different from other racial minorities? As Chavaree continues,
"The history of Indian/non-Indian relations repeatedly has shown this separateness. The actions of the federal government towards its Indian citizens has ultimately confirmed it."
What are some examples or manifestations of it?
An example of an abuse of tribal sovereign power that I found interesting was that of Darrell "Chip" Wadena, who asserted sovereign immunity in a federal court to escape criminal charges resulting from his individual actions as chairman of the White Earth Chippewa Reservation in Minnesota. This was not what tribal sovereign immunity was intended for since it was meant to provide immunity for entities acting in a governmental capacity, not to protect against an individual’s fraudulent actions. The case we read for United States of America, et al., Plaintiffs, vs. State of Washington, et al., Defendants, made an interesting point in the "Canons of Interpretation" when looking at how the federal Supreme Court had chosen to interpret treaties:
"…a treaty is not a grant of rights to the Indians, but a grant of rights from them, thereby implicitly containing a reservation of those rights not explicitly granted."
Subsequently, this type of interpretation allowed for most of the Washington State tribes listed as plaintiffs to retain fishing rights to State lands outside of reservations and also for purposes of shell-fishing.