Conquest always leaves residuals. There is no such thing as complete
genocide; always there are unaccounted debts. As long as one Indian lives,
title to the land is not settled.
We are in the throes of a major debate. Will the Native nations of the
Western Hemisphere - the American Indian peoples - be recognized as having
"inherent' powers of sovereignty and rights of self-government? To some,
this is an obvious point of view. To others, it is anathema itself - the
most preposterous and divisive idea facing the great American union and,
perhaps, most of the other Western Hemisphere republics.
On Indian cases, the Supreme Court is increasingly a crap-shoot. In the
past decade, many decisions have tended to slice pieces of Indian
jurisdiction away, helping to revitalize a powerful states' rights agenda.
The Supreme Court's decisions over the past decade have tended to limit
tribal nations to the exercise only of sovereign powers that are, as
professor David E. Wilkins points out in these pages, "specifically
retained in ratified treaties or that have been statutorily delegated to
them in express congressional acts."
The Lara decision of April 19, as Indian Country Today's analysts discern
in these pages, tends to strengthen tribal rights, while calling up deeper
questions. It reaffirms, from the heart of the legal system, that tribal
government is founded on grounds beyond the legal limits of. United States
jurisprudence. That nearly impossible to assimilate reality and its
corollary - that American lands and resources are largely expropriated from
tribal peoples - can indeed prove quirk-some to jurists searching out the
earliest of legal precedents. In Lara, Justice Stevens notes how common the
"acknowledgment of the inherent sovereignty of tribes" is in American
jurisprudence. This power of self-governance, he points out, has "a
historical basis," while most states, by contrast, "were never actually
independent sovereigns, and those that were enjoyed that independent status
for only a few years." Weighing in at the other end of the scale from the
anti-sovereignty trend of the past decade, the Court recognized the tribal
nations' sovereignty as inherent, and "not a delegation of federal
In his majority opinion, Justice Breyer backed the Congressional override
of one of the Supreme Court's most protested recent Indian decisions, Duro
v. Reina (1990), which limited a tribal court's jurisdiction to its own
tribal membership, as reported Indian Country Today Associate Editor Jim
Sovereignty is in the land; it is territorially-based. Governments of the
people have the right within their territory to enforce their laws. Again,
to celebrate, the Court expressed a strong tone of respect for what Justice
Stephen Breyer asserted as the tribes' inherent legal power over nonmember
Indians who lived on their territory. Justice John Paul Stevens noted the
"historical basis" of tribal sovereignty and concurred that tribes
"governed territory on this continent long before Columbus arrived."
We are unconditional in our fundamental view that Native peoples,
particularly those holding territories in their ancestral lands, sustain by
their aboriginality an a priori (working from something that is already
known or self-evident) right to self-government and, when proper, are due
recovery of lands and re-establishment of jurisdiction. The Constitution,
in our view, does NOT empower the U.S. federal system over Indian nations.
We believe that a straight technical reading of historical events provides
a clear picture on the matter - Indian nations never subsumed their
sovereignty to that of the United States. The idea of Congress' "plenary
power" over Indian governments is a perception that has gradually
encroached into the discourse of American Indian law and is inconsistent
with a clear reading of the Constitution, previous events and Supreme Court
rulings. While tribes may strategically litigate within these openings in
American law, they should never cease to use language that recalls the
ancient right to inhabit and govern ancestral lands.
American jurists at the highest ranks struggle with these issues and
sometimes are even forced to contemplate the substantial history of tribal
relations with and within the American body politic. A debate is forming in
American jurisprudence about the fundamental questions of Indian law.
Witness the mind-warp traveled by Justice Clarence Thomas as he delved into
Indian law questions. In this age of extreme partisanship, is it possible
that Supreme Court Justice Clarence Thomas may yet be the judge to follow
the logic of U.S. Indian law to its most clear dimension - that there are
serious underlying problems regarding the assumption of United States
congressional hegemony over American Indian governments? Unexpectedly,
Justice Clarence Thomas asked incisive questions, which are bound to
receive varieties of answers as cases come up to be rejected or decided by
the High Court. Nevertheless, as our analysts also rightly warn, the
dissenting opinions in Lara are as troubling as the recognition of inherent
powers are cause for celebration.
Among major debates of all time we include the famous Sepulveda and las
Casas hearings at the Spanish Court, during the early decades of conquest
(1550), where they argued over the humanity of Indian peoples. Fray Juan
Gines de Sepulveda argued that Indians were "beasts that talk," worthy
only, as per Aristotle's prescription, of slavery to serve the
lighter-skinned races. Las Casas argued that the Indians were human beings
and indeed, capable of civilization (Christianization). One argued
genocide; the other established the doctrine of human rights and defense of
the victimized peoples within Christianity. Neither, within their
unilateral conversation, settled the question of the Indian nations right
to be respected as distinct peoples of the world.
The terms of the current debate do not fall that far from the early one.
Today's justices argue among themselves when the very nature of relations
among the United States and American Indian governments is bilateral, if
not multilateral. Will American law finally and completely recognize the
Native nations' rights of existence? Only if they continue along the
intellectual avenues opened by Justice Thomas in his identification of the
contradictions found in American Indian law. And only if they honestly
trace American legal and structural assumptions to their points of origin.