The 16th century legal philosopher Jean Bodin is often credited with being the first to define sovereignty as "supreme legal authority." As the concept of sovereignty evolved, however, both philosophers and rulers realized that legal authority without political and economic power is of little value. Indeed, any nation that lacks the ability to assert authority over its claimed geographic boundaries will awake one day to discover that those boundaries have been diminished.
The history of Native people in America offers a profound illustration of this principle. In 1700, Native Americans controlled virtually all of the land east of the Mississippi River, save the Atlantic coastal region which was inhabited by approximately 200,000 colonists. By 1800, however, the colonial population - including its enslaved African work force - had swollen to 2 million. The Native population in the east, by contrast, had shrunk to about 250,000 from a pre-Columbian high of about 1.75 million. Admittedly, much of this decline was attributable to the inability of the Indian immune system to combat the epidemic diseases imported from Europe. In the final analysis, however, the Indian nations simply lacked the political and economic power required to assert legal authority over their lands.
Relegated to remote reservations, Native peoples lived in abject poverty and almost complete obscurity for the better part of two centuries. Rarely was the word "sovereignty" uttered by an Indian nation since virtually no tribe had the political power or economic resources required to be recognized as a true, independent sovereign. At best, they were referred to as "domestic dependents," living off of the crumbs that fell from the table of the federal government.
In the late 1970s, a change began to occur when a handful of Indian nations opened bingo halls, convenience stores and other enterprises. And 10 years later, several Indian nations discovered the wonders of casino gaming. Like a phoenix rising from the ashes, many tribes began to re-assert their rights as sovereign nations: reacquiring lands that had been taken from them in violation of the Non-Intercourse Act, providing health and welfare services to their members, and establishing police departments and other government agencies to assert control over their lands.
The majority of Indian nations, however, have been unable to develop the economic engine needed to fully restore their tribal governments and the sovereign power they once enjoyed. Many are situated in distant locations where the population is insufficient to support gaming or other commerce. Others are hindered by recalcitrant and greedy state governments that seek to thwart economic development in Indian country.
Some paternalistic politicians in Washington have suggested that the gaming tribes should be compelled to share with other Indian nations. These same bureaucrats, however, would bristle at the notion that the United States should be forced to impart its largesse to Costa Rica or that California should subsidize Mississippi.
In reality, a real and lasting solution to broad-based economic development in Indian country can only come from Indian nations themselves. And that development can start today through intertribal trade.
In his recent book on Native history in early America, "Facing East From Indian Country," Daniel K. Richter reminds us that ancient trading routes among Indian peoples have existed for centuries. Sophisticated channels of trade and communication spanned the continent, frequently following the major river systems. Richter notes that "some closely neighboring peoples might exchange crucial resources - corn, for instance, for meat or fish - and some at slightly greater distance may have controlled access to particularly valuable quarries that provided the raw material for stone, tools or weapons." Quartz from the Rocky Mountains, seashells from the Atlantic and Gulf coasts and copper from the Great Lakes region - all have been found in archeological sites throughout the continent, attesting to the existence and diversity of intertribal trade.
Today, the circumstances are ideal for Indian nations to re-open the ancient trading routes that historically have bound all Native peoples. Gaming tribes, for example, require a vast array of goods and services to support their casinos and related facilities - goods and services that often can be provided at competitive prices by non-gaming tribes. To encourage such intertribal trade, several Indian nations, such as the Mohegan Tribe of Connecticut, have developed preference programs that provide all Native vendors with certain advantages when competing for tribal contracts.
The number of Native vendors producing first class products and services is growing rapidly. A year ago, more than 1,500 people attended "The National Summit on Emerging Tribal Economies" in Phoenix, Ariz. The event provided an ideal forum for tribal governments and their members to reestablish ancient trading links and form new alliances. Also discussed at the summit was the possible creation of purchasing cooperatives that would allow Indian nations to pool their buying power and thereby reduce their cost of goods and services. Gatherings of this type should be held annually, if not more often.
Not surprisingly, some state governments and others wish to impede intertribal trade. Last year, for example, the State of Kansas sought to tax fuel sales between the Winnebago Tribe of Nebraska and the Sac and Fox Nation. The tribes have contested the state's unlawful interference with their trade by arguing that there is a categorical bar under federal law against state taxation of any goods manufactured by one Indian nation and sold to another. The Federal District Court has yet to rule on this argument, though it did determine that the position of the tribes had sufficient merit to warrant a preliminary injunction in their favor - a decision that was affirmed last week by the 10th Circuit Court of Appeals.
To strengthen their legal position in the face of state meddling, Indian nations should consider the negotiation and execution of bilateral trade agreements, similar to those that have been concluded by the United States and other western nations. Such agreements could serve as the legal foundation for commerce between two tribes, thereby imbuing all subsequent transactions with each tribal government's sovereign immunity.
Though intertribal trade is not a panacea for every problem in Indian country, it can greatly enhance the sovereignty of all Indian nations, provide for the economic betterment of Native peoples, and restore the exchange of traditions and languages that have sustained tribal cultures for centuries. The ancient trading routes among Indian nations are awaiting rediscovery. We can honor those who first established those vital economic links by restoring them today for the benefit of future generations.
Eric F. Facer is a partner in the Washington law firm of Facer & Stamoulas, P.C. He serves as legal counsel for the United South and Eastern Tribes as well as several Indian nations in the Eastern United States.