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Beyond sovereignty - The need for Native formulations

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James Sappier, chairman of the Penobscot Indian Tribe in Maine, often lets loose a provocative statement; and he did not disappoint some time back at a conference on tribal sovereignty. Sappier marveled at the spelling of the term that seems almost indispensable for discussing Indian rights. “It has an ‘e’ and an ‘i’ – and look, there’s a ‘g’ in it too. It’s a scary word.”

As Sappier was indicating, the term “sovereignty” has origins far removed from Indian country. It’s ironic that so much of the discussion of Native rights in our contemporary society uses terms derived from 16th century French political theory. The fact is that the 16th century French principle only approximates the rights of tribal survival and self-determination that Indian country upholds with near unanimity. As Beverly Wright, former chairman of the Aquinnah Wampanoag, said at the same conference, “We knew this in our hearts before we knew there was a word for it.”

The question that some are asking, starting with the late Vine Deloria Jr. and continuing with Indian lawyers confronted by a hostile Supreme Court, is whether “sovereignty” is exactly the right word. Is there another formulation that will resonate more persuasively with the mainstream society and explain more clearly what American Indians are struggling to defend?

Deloria warned that by relying too heavily on the word “sovereignty,” Indian country left itself vulnerable to the snares and hidden meanings that European history has embedded in the term. As many tribes discovered in their dealings with Europeans, the terms of negotiations often turned out to have unexpected meanings. What lawyers now call “terms of art” had implications not obvious on their surface which resulted in depriving the tribes of far more than they meant to give up. “Sovereignty” is one of those words. It has gone through significant changes in European and American usage. It’s important just for self-defense to have some sense of the way the term has evolved.

Historians trace the theory of sovereignty to the French jurist Jean Bodin (1530? – 1596). This writer was himself a bundle of contradictions. In his youth he narrowly escaped condemnation as a heretic, but he ended his life as a stalwart member of the Catholic League. He wrote one of the first tracts on religious toleration, but he also compiled a study of demonology that became a manual for witchcraft trials. He is known as an advocate of absolute monarchy, but his doctrine imposed significant limits on the French king.

Sovereignty, as Bodin described it in his “Six books of the Commonwealth,” was actually a reaction against earlier constitutional theory derived from Aristotle, which held that the most effective form of government was a mixture of the three basic regimes: democracy, aristocracy and monarchy. Bodin objected that having three different principles of government in one state was a recipe for civil war. The state had to acknowledge one source of authority. The ultimate source was God, the ruler of the universe. The French king could claim to rule as an agent of divine authority, but he had to acknowledge that he was subordinate to divine right and limited by the rights that the Almighty had implanted in humanity (including the individual’s right to property). In other matters, however, the state was the sole sovereign.

(This doctrine transformed the earlier understanding of the three basic regimes. Instead of contending principles of government, they shrank to the status of functions of the single sovereign. The civics textbook description of the executive, legislative and judicial functions of the American Constitution traces back to this transmutation.)

But too many different interests were burgeoning in European society to sit content with a divine right of kings, the doctrine into which Bodin’s theory degenerated. Religious and social struggles in England erupted in the epic conflict of Parliament and King Charles I and the search for a new basis of sovereignty. It was supplied by John Locke (1632 – 1704). His “Two Treatises of Government” appeared in 1689 after England’s Glorious Revolution and the final ascendancy of Parliament. He located sovereignty not in God, but in the consent of the governed.

There is a fascinating interplay between European contact with American Indians and the doctrine of the state of nature that Locke used as the basis for his social compact. It generally worked to the disadvantage of the Indians. But the doctrine of the social compact has possibilities for the tribes that we will return to. It is certainly preferable to what comes after.

Even though Locke’s theory of sovereignty still holds sway in the United States, European thinkers began to reject it in the early 20th century. A major change took place with a German theorist named Carl Schmitt (1888 – 1985), who according to some still has surprising influence. Schmitt and his school of political realists dismissed parliamentary government as a facade for the real sources of power. Constitutional law was a deception. The real source of sovereignty was the state power that remained when the illusions of representative institutions were swept aside. His doctrine, a sort of “last man standing” theory of sovereignty, is said to inspire the realpolitik school of international relations. Some legal critics even see his influence in the Bush administration’s assertions of sweeping executive authority in fighting terrorism.

The trouble is that Schmitt was an unrepentant apologist for the destruction of the Weimar regime in Germany and the rise of Hitler. He was one of a handful of serious political theorists and philosophers who lent their prestige to a thoroughly evil political movement. All minorities have common cause in fighting movements that deny basic human rights and scapegoat entire groups of people because of their identities. But it’s important to identify the sources of evil long before the “miner’s canary” gives its ultimate warning.

The phenomenon that concerns us here is that basic terms begin to change their meanings. The foundation of “sovereignty” changes from divine right to consent of the governed to seizure of power by a tyrant claiming to represent a mystical popular will. The fact that the European mind can put its foundational principles through such radical mutations should make us very wary about relying on its political vocabulary.

“Sovereignty” as a means of harmonizing Native survival with the dominant society means, first of all, the right of tribes to self-preservation – cultural, linguistic, religious, territorial and political continuity. Native peoples have this right because they were here first and they haven’t gone away, and none of the old European arguments for dispossession make any sense, even to Europeans. It’s become inescapably clear that the denial of this right to the tribes has caused massive social misery and that the exercise of this right has become the path to healing and recovery.

The task is to explain this right to the dominant society in a vocabulary free of irrelevant historical baggage and unintended meanings, and to show the whole country that it too will benefit.