Indian Law: Defining Sovereignty

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?

      

    


Reprinted as an historical reference document under the Fair Use doctrine of international copyright law. http://www4.law.cornell.edu/uscode/17/107.html