We've all heard references to the 'special rights' of American Indians. Sometimes, it's an affirmation of Indian nationhood; other times, it's an attack on Indian sovereignty. Given these two ways of using it, we need to be careful with the phrase 'special rights.' Perhaps we shouldn't even use it.
Here's an example, from a 2001 study of Native American rights by the Michigan Supreme Court Historical Society: "The Legislative Research Division defined tribal sovereignty as 'the inherent right of the tribe to govern itself.' It further explained that: 'This right is predicated on the fact that prior to European colonization, tribes conducted their own affairs and needed no outside source to legitimate their powers or actions. Once the Europeans arrived in North America, they claimed dominion over the lands they found, thus violating the sovereignty of the tribes already living there. As a consequence, Native Americans in Michigan retain a host of special rights, including gaming, hunting and fishing….'"
The Michigan study says 'tribal sovereignty' is rooted in the original sovereignty violated by the colonists, and that 'special rights' is a name given by the violators to the sovereign powers that were not violated. But from the Indian perspective, not explored in the study, these powers are not special rights at all; they are remnants of original free and independent existence.
The Michigan study also says that treaties with Indigenous peoples "constituted the basis for the creation of the state of Michigan." Why, then, did it not say that the state of Michigan has 'special rights'? Why did it not say that the sovereignty of the state of Michigan was limited by the sovereignty of the Indigenous peoples already living there? It seems that the study sees 'special rights' not as a foundation for government, but as a weakness, indicating something less than government. The very same treaties that are designated as the basis for the creation of the state of Michigan are turned around and designated as the basis for less than sovereignty for the Indian nations.
Some people are satisfied with the fact that the Michigan study affirms "tribal sovereignty [as] a firmly entrenched legal reality upheld repeatedly by the U.S. Supreme Court." This may sound friendlier to Indians than positions that attack any form of Indigenous sovereignty; but so long as the study perpetuates the notion of 'special rights' it presents a danger to Indian nations.
'Legal reality'—the law—is created from ideas backed up by the threat or use of force. If we want to understand American Indian sovereignty and protect it for future generations, we need to be aware of the ideas that inform the legal reality. We need to beware of ideas that seem supportive of sovereignty, yet are actually hidden traps. 'Special rights' is one such idea.
This problem of terminology becomes even trickier when we understand that Indigenous sovereignty is not the same as state sovereignty; the 'reality' of American Indian sovereignty is not the same as the 'reality' of state government. The two realities are built from different ideas and enforced differently. Indeed, 'sovereignty' is an inadequate and even inappropriate concept for describing the organic, self-determining functions of Indigenous peoples.
We need other words to describe Indigenous power structures and to articulate the ideas and beliefs that have sustained Indigenous peoples from time immemorial, even after colonialism disrupted and tried to destroy them with its ideas of 'superior civilization' and 'special rights.'
In the face of US Supreme Court decisions continually undercutting 'special rights'—including the 'trust doctrine' and 'tribal sovereignty'—these issues become crucial. The historic affirmation by the UN of the rights of Indigenous peoples provides an opportunity to ask deep questions about language to guide international Indigenous self-determination.
In the 1950s and 60s, American Indian activism was strongly focused on these issues. Young leaders, like Vine Deloria, Jr., and many others, met with elders to discuss the free existence that had been trampled by colonialism. Some of this activism sparked the American Indian Movement; some provoked new forms of 'government-to-government' cooperation. Some fell by the wayside, to be picked up again by a later generation. Is that generation here today?
Peter d’Errico graduated from Yale Law School in 1968. He was staff attorney in Dinebeiina Nahiilna Be Agaditahe Navajo Legal Services from 1968 to 1970, he taught Legal Studies at University of Massachusetts, Amherst, from 1970-2002, and is currently a consulting attorney on indigenous issues.