Special Edition: American Indian nations and American law - a primer

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Buffy St. Marie's signal song of the 1970s ? "Now that the Buffalo's Gone" ? spoke about "the genocide basic to this country's birth." Buffy's song was direct and to the point and harshly offensive to some who would dismiss that history as something past that has no relevance to today. Nevertheless, the popular song captured the historical truth of conquest and military subjugation endured by American Indians.

No matter how rationalized, it is the reality: the Native North American tribes were largely overrun and largely dispossessed. It is not a pretty history and as it happened, the people who carried it out rationalized and justified its objectives and even many of its methods. By and large, those justifications were inscribed into law ? Federal Indian Law ? a system that for better or worse represents the major arena of contention for tribes today.

We are proud this week to feature a substantial range of articles and opinion pieces that signal the problems and opportunities inherent in the special body of law that tribal Americans must face. Our excellent team of columnists and reporters, we believe, has produced in this effort a very useful primer for the understanding of salient law issues facing Indians. The issue is full of nuggets of perception and information on tribes within American law ? how to think about the standing of Indian peoples and their governments. We invite you to take your time with the brief but clear articles on this important topic. We recommend it to every Native leader, student and educator in the country, as well as every policy maker whose work and life may intersect with American Indian issues. Read every word.

Having resisted and survived the initial onslaught and rebuilding slowly but with increasing certainty through the 20th century, American Indian tribes today find themselves in the constant navigation of treacherous legal waters. The Supreme Court is very hostile and tends to squeeze Indian tribal powers as it gives the states more and more jurisdictional opportunity.

By the time of Buffy's song in the 1970s, of course, Native peoples had in fact survived genocide, had recovered, albeit slowly. Concurrently, a federal Indian law construction, one that reflected that survival, also developed. But, if genocide was basic to the country's birth, as Shawnee/Delaware legal scholar Steve Newcomb points out this issue, a great "pretense" is also basic to the rationale behind American federal Indian law.

The pretense is in the "Doctrine of Discovery," which assumes that mere contact or "discovery" with and by Europeans constituted "conquest" and wiped out or severely diminished Indian sovereignty. This is supposedly true because Indians were so-called "heathen peoples," non-Christian.

The intellectual case of U.S. and state sovereignties having a stronger sovereignty than Indian governments is founded on dubious doctrine. But while the "Doctrine of Discovery" is poor foundation for what was actually colonization, with or without conquest, the might that fueled the so-called and quite rapacious discovery still sustains. Indians do well to understand that tribal roots in aboriginal title and political identity are the actual base, but operating in any system that becomes available is also completely necessary.

John Mohawk reminds us that Indian sovereignty is inherently real when he points out that Native peoples "made their own laws and rules and they had power to enforce those laws." Tribal authorities had "a way to settle disputes" and organized confederations across North America. Deriving powers "from the people of their nation and occasionally from spiritual sources," traditionally, Indian governments met all the definitions of having a system of customs and laws and sovereignty as peoples.

Make no mistake, the historical truths and intellectual underpinnings that support American Indian sovereignty are superior to that body of knowledge which has framed Supreme Court opinion on matters of Indian law. But, it is equally true that the American trend to dispossess Indians from all things Indian in an Indian land remains very much in play. To those things coveted ? lands, resources and markets ? we may certainly add tribal powers and authorities as expressed through tribal laws.

Joe Singer analyzes the "massive assault" at the Supreme Court level to deny Native tribal governmental powers. This present court is, through ignorance or ideological design, moving to strip "tribes of inherent powers they previously possessed and [to] transfer those powers to the states, who never had those powers." The court's direction contradicts both congressional and executive policy, which has been mostly supportive of tribal governments since the Kennedy-Nixon era, but it is a generally dangerous arena for Indian governments. Singer details how the Rehnquist Court has worked to limit congressional power over state governments. By decreasing federal power, which often regulates and protects tribes, the vacuum gets filled by reserved state powers. The direction of the Rehnquist court tends to severely squeeze Indian tribal rights. It assumes that "state power is inherent, and tribal power is limited." This and other analyses strongly suggest that the odds are against tribal cases at the Supreme Court these days.

Mohawk also reminds us that: "When the United States was first established, Congress promised that '(t)he utmost good faith shall always be observed toward the Indians; their lands and property shall never be taken from them without their consent, and in their property, rights, and liberty, they never shall be invaded or disturbed...'" Nevertheless, the "political question doctrine" can disallow all that. Too often, in Indian cases, the Supreme Court "states not the law, but the political position of the United States." This is what expectedly becomes law.

Dave Wilkins focuses for us on one legal doctrine that can be substantially helpful to indigenous peoples ? the reserved rights doctrine. He credits Vine Deloria Jr., for comparing the reserved rights clause "contained in the U.S. Constitution's 10th Amendment with that lodged both expressly and implicitly in Indian treaties (and agreements and statutes) where tribal nations reserved all those powers, rights, and resources not expressly surrendered to the federal government."

Wilkins points out three other positive although perhaps lesser canons in U.S. Indian law: "1) ambiguities expressed in treaties are to be resolved in the Indians favor; 2) treaties are to be interpreted as the Indians themselves would have understood them; and 3) treaties are to be liberally construed in favor of the tribes." However, he reminds us that Indian treaties themselves may be expressly abrogated by Congress.

The question of "reserved rights" is thus paramount. Every time a tribe acquiesces to something, it weakens the legal precedent for all tribes. Every time a tribe retains its reserved rights and maintains a posture of self-determined government, all tribes succeed. Tribal political courage and will is at a premium and must be exercised in every possible instance. American Indian peoples must act to build the proper approaches. Indian governments must consistently legislate their own laws, whether on taxation, citizenship, norms of trade and commerce with other governments, including other Indian governments, etc. Establishing a basis of Indian-generated tribal law, as Suzan Shown Harjo points out, is of critical importance.

There is much more here. We are ardent supporters of the proposition that information and knowledge about Indian rights need to become increasingly available to all of the Indian population and to the general society as well. It is imperative that our best researchers and thinkers are joining the pages of a newspaper like Indian Country Today so that intelligent Indian perception can be regularly published, so that Indian and other interested readers can go directly to it and join the discussion.

It is entirely true that Indian people have no concrete protections under American law. This should come as no surprise to any tribal leader today who knows the true history of their people. But what American Indian nations have carved out of the rock of American might, what they have shaped, formed and created through the far deeper genesis of their own experience in this land and from their own brilliant intellectual traditions, including those of justice and law, is primary. American Indian sovereignty is a product of and limited only by the power and potentials of imagination and idea translated to reality and, when possible, inscribed into legal precedent.

"Sovereignty is the act thereof," states an Iroquois teaching. No doubt, this remains a responsibility that requires utmost political courage and will.