by Phillip Burnham
Indian
Country Today
Originally posted 13 Dec 2004
In
recent weeks, Indian Country Today has spoken with tribal judges,
legal scholars, law professors and political activists about the
changing field of Indian law. This multi-part series examines
issues from sovereignty to reservation justice to international
human rights in assessing traditions and innovations in the field.
A simple
but seductive word lies at the heart of Indian law. Sovereignty
means the inherent power to self-govern. But the devil is in the
fine print: Govern whom? How much? Under whose thumb? From
Congress to the United Nations, august assemblies struggle in vain
to define it.
For the
honorable Charles W. Blackwell, ambassador of the Chickasaw Nation
to the United States, ''one's sovereignty begins with one's
self,'' a credo of personal conviction. A Choctaw/Chickasaw raised
in southern Oklahoma and northern New Mexico, Blackwell also
directs Native Affairs and Development Group, a consulting and
advisory firm he founded in 1976 and a leader today in the
business world of private sector/tribal partnerships.
Blackwell,
who earned a J.D. and served as assistant dean at the University
of New Mexico Law School before going to work on Wall Street, is
an advocate of entrepreneurial sovereignty, a savvy mixture of
hard work, enlightened self-interest and tribal community service.
Seated in
a leather armchair in Pushmataha House, the mission leased by the
Chickasaw in a wealthy neighborhood of Washington D.C.'s Capitol
Hill, Blackwell put the case for diplomatic recognition bluntly:
''We didn't ask anybody if we could have an envoy here, and we
didn't need to.'' Appointed ambassador, a formal position most
tribes eschew, in 1988, Blackwell said one consequence has been
that the Chickasaw haven't needed a lobbyist for 10 years, thus
saving money and avoiding reliance on political outsiders.
The
Oklahoma Chickasaw have climbed out of the red ink in a hurry.
Class II gaming, a chocolate company, information technology and a
tribally-owned commercial bank make for ''one of the most
successful and diverse tribal economies in the country,'' said
Blackwell. Progressive tribal governance for 20 years has
remarkably reduced reliance on federal funding. ''The time will
come, I'm sure, when the Chickasaw Nation will be an independent
dependent sovereign nation,'' Blackwell said proudly. ''That will
take us back to the state of independence we had before white
contact.''
The
aggressive self-help version of sovereignty appeals to many of the
haves, if not the have-nots, in Indian country. For some tribes,
explosive economic growth has encouraged participation in national
politics and markets to an extent unforeseeable a generation ago.
''When
the Oglalas coalesced their vote'' in the 2002 U.S. Senate
election in South Dakota, said Blackwell, ''they made a tremendous
difference. It helped every tribe in the country. Every politician
in the country was sitting up thinking, 'oh wait a minute, maybe
we better take a second look at the Indian vote.'''
A strong
advocate of the trust relationship, Blackwell subscribes to
Justice John Marshall's concept of ''domestic dependent nations.''
People don't grasp that tribes, like states, can exercise
sovereign responsibilities, said Blackwell. ''Tribes can't
separate themselves from the fabric of America,'' he added. ''The
better states and tribes get along, the stronger that part of
America will be.''
Some
observers regard state compacts and federal elections as a
diminution, not an affirmation, of Indian sovereignty. An advocate
of strong tribal autonomy is Robert Odawi Porter, a Seneca Nation
member and professor of law at Syracuse University, where he
directs the Center for Indigenous Citizenship, Law, and
Governance.
Sovereignty
begins, said Porter, with identification. ''Nations do not enter
into treaties with their own people. And when all Indians identify
as American citizens, I think it puts at great risk our status and
our claim to be treaty Indians governed by a separate legal
document rooted in history. People look at us and say, 'You all
think you're Americans. I guess the Indians we entered into those
treaties with are gone.' And there goes your sovereignty.''
Porter, a
former attorney general of the Seneca, cited gaming as a powerful
lure to assimilate. To get a casino, he explained, a tribe has to
give up authority in a state compact, an idea that would have been
anathema in Indian country 20 years ago. ''The money is so great
[the gaming tribes] don't look at the bottom line of what they're
giving up in terms of control to the state.''
Blackwell,
who supported multi-tribal negotiation of the Indian Motor Fuels
Tax Agreement in 1996, a ''modern-day treaty'' for revenue
sharing, sees state accords differently - and knows the fallout
they can engender. ''I was called everything but an Indian by some
tribal leaders who said we'd sold our sovereignty because we were
sharing taxes. Well, you know what? Chickasaws are also
Oklahomans. What's good for Oklahoma ought to be good for the
Chickasaw Nation, and what's good for the Chickasaw Nation ought
to be good for Oklahoma.''
Porter,
who spoke by telephone from his office in Syracuse, has advocated
a ''strong sovereignty'' model where Native people would choose
between tribal and federal citizenship. ''We're citizens of our
own nations. We don't need to be citizens of the U.S. We're at
peace with the U.S., we have a treaty with the U.S., but we don't
need to be Americans. And the consequence is grave. Our people
have been conscripted against their will, they have been required
to pay confiscatory taxes to the U.S. for income earned in our
territory. None of this has been consented to.''
Sovereign
tribes even merit a seat at the United Nations, added Porter,
given the body's recognition of states such as Tuvalu, a group of
Pacific islands with 10,000 inhabitants. ''American citizenship
for indigenous people only exists as an act of colonialism in an
effort to destroy our sovereignty.''
Different
schools notwithstanding, the word has magic still. ''Sovereignty
can be taken as a 21st century ghost dance shirt in which people
hold it up, as people of the 19th century would a ghost dance
shirt, believing as long as they had it they were invincible,''
noted Rennard Strickland, professor of law at the University of
Oregon. But ''what you're dealing with is often contests between
sovereigns. Often, I think, the highest use of sovereignty is to
use it to work with others.''
Porter,
who defends the trust doctrine, agreed in principle. Any sovereign
nation should be able to care for its people, he said, and not
every dollar can be tied to a treaty obligation. But every country
in the world gets help from America, he added. Why not the Navajo,
too?
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