The Context and Content of Sovereignty

A column by Steve Russell about Native American sovereignty.

Sovereignty is not what it used to be, and I am not speaking of Indian sovereignty in particular. Sometimes I think about the rise of the nation-state with bemusement at the customs of historians. That rise of is marked from the Treaty of Westphalia in 1648, but the feudal subjects who were the vast majority of humanity could certainly see no difference at the time.

It was the rulers who had their actions constrained, much like the Magna Carta constrained the English king in a manner that made a world of difference in theory but not a hill of beans to the average Englishwoman.

Westphalia allegedly defined sovereignty of states and recognized the political equality of all states, as well as a concomitant duty of each state not to interfere in the internal affairs of another. These constraints were and are violated on many pretexts, but they represent a baseline expectation that creates political leverage against violators.

In virtually all nation-states of the time, “sovereignty” resided in the person of the sovereign, the monarch, who ruled either by inheritance or by force of arms. All decisions of government were personal decisions of one individual, with all the human variation that implies.

Criminal law arose to punish a violation of “the King’s peace,” and what disturbed the King’s peace was whatever the King decided from time to time. El Camino Real, “the King’s Highway,” was an established trade route where any robbers were on advance notice that robbery would disturb the King’s peace, and by robbing in that place they made themselves outlaw—their property and their lives forfeited.

Westphalian sovereignty did not address methods of government, and a common pretext for intervention in the internal affairs of other nations came with the often bloody decline of monarchies. The royal families of Europe were intermarried to a degree that concentrated their political interests along with their recessive genetic traits.

Those royals who survive today are heads of state, not heads of government, and there is a rough division between nations of democratic form and nations of authoritarian form. Most nations have aspects of both, just as virtually all modern economies blend capitalism with socialism.

American Indians need to note that date historians pick for the rise of the modern nation-state, 1648. The idea that all European governments were more advanced than all governments indigenous to the Americas at the time Columbus got lost is fairly preposterous.

We had monarchies just like Europe’s, but also pure democracies, various kinds of confederations, and theocracies. The Six Nations had famously solved the riddle of representation by geographical area and by population, whether or not Ben Franklin brought that into the writing of the U.S. Constitution. There is plenty of physical evidence that pre-Columbian trade routes spanned the entire continent. Trade on that scale does not take place without political organization sufficient to guarantee the peace.

To say that European diseases decimated Indian nations would be absurd understatement, since to “decimate” is literally to kill one in ten. There is no hard count of the Indian nations lost to history. The U.S. colonial government currently recognizes 566 remaining, but many of those are fragments of peoples who used to be one. My own nation is divided into three pieces by various accidents of colonial history.

My people progressed from theocracy to monarchy to confederated towns. We became a constitutional republic in 1827, making our republic older than many of those recognized by the United Nations. The most common form of tribal government in the US is by a “constitution” pulled off the shelf at the Bureau of Indian Affairs. Chiefs are weak, tribal councils are elected boards of directors, and tribal courts are tacked on afterthoughts.

Indian government forms are not sitting still, but neither is the context in which they function. Nation-states are bleeding authority in both directions. From below, there are regional demands for self-government and delegations of authority to state, county, and municipal governments as well as special purpose units with varying degrees of autonomy.

From above, there are webs of multi-lateral treaties that have attached to the skeleton that was customary international law. There are the institutions growing from that body, such as the Permanent International Court of Justice and the numerous special purpose courts that have managed to put former heads of government in the dock for crimes against humanity. There is the UN Security Council, which is authorized to use military force against outlaw nations.

I have argued elsewhere that the nation-state is in the process of being supplanted by the transnational corporation as the dominant form of human political organization. Keep in mind that change would be about as visible at this time as the new paradigm we now ascribe to 1648 was then, but even if I’m wrong, our tendency to reify sovereignty as something subject to common understanding today is a not terribly useful exercise in fantasy. Sovereignty is what the post-modernist crowd calls a “contested discourse,” and understanding that is the first step to being effective in contesting it.

Steve Russell, Cherokee Nation of Oklahoma, is a Texas trial court judge by assignment and associate professor emeritus of criminal justice at Indiana University-Bloomington. He lives in Georgetown, Texas.