Updated:
Original:

Win the Digital War: Tribes Must Exercise Data Sovereignty

Native Nations predate the existence of the United States of America by thousands of years. Colonists and foreign principalities alike acknowledged our sovereign status when they entered into treaties with tribes. The federal government alone signed more than 650 treaties with Native nations.

As sovereign nations, Native American tribes have the inherent right to govern themselves. While the U.S. Congress claimed plenary power over tribes in the U.S. Constitution, true sovereignty means Native nations require no outside power to legitimize our authority. We exist independently.

Within the current framework, tribes use their authority to elect leadership, protect citizens, maintain law and order, determine membership, exclude those who aren’t members, collect and levy taxes, and regulate domestic relations, commerce and property.

Now there is a new frontier that tribes must protect, a digital landscape. The National Security Agency, FBI, CIA, and other government organizations have access to all of your personal data, compiled in bulk as metadata. The War on Terror, 9/11 and laws like the Patriot Act have been used to scare the public into accepting an unprecedented era of mass surveillance and government secrecy.

As you read these words on your computer screen or electronic device, know this: you’re being watched and your presence on this page and every other site you visit is being recorded. It doesn’t matter if you’re engaged in criminal behavior or not. These searches are warrantless.

Everyone is being monitored, both the guilty, and the innocent. While we were watching Netflix, organizing ITunes playlists and downloading the latest apps, the NSA was hard at work building an elaborate infrastructure that allows it to intercept the vast majority of human communications. They have access to your emails, texts, phone calls, Facebook messages, and even your credit card transactions. They know your user IDs and passwords. They can decipher your location at all times through time stamps.

We’re all being tagged, like we’re on one giant Orwellian animal farm. Your purchases are documented too. Besides invading the privacy of everyone on a global scale and hindering freedom of speech, this metadata is valuable. Corporations pay to know your interests, what you’re buying and where.

Like other aspects of inherent rights, if tribes don't exercise sovereignty over digital domain, they will lose it. The federal government is treating this new digital landscape as though it is undiscovered country where they may once again plant their flag and seize all of it ala Manifest Destiny and the Doctrine of Discovery.

Under the Marshall Trilogy, the Supreme Court held that tribes only have the right to use and occupy lands. Even though this logic is decidedly flawed, they ruled that if we no longer use or occupy our homelands, we lose it and essentially no longer exist as tribal nations. Since this is established foundational legal precedent, it only follows that the government and its entities could hold that tribes’ inability or unwillingness to exercise sovereignty over its metadata, including that of its membership, could mean that we are relinquishing that authority.

We’ve got to build our own digital infrastructure and claim ownership of our own metadata. From gaming operations, tribal programs, businesses, educational institutions and individual tribal member activity, tribes have loads of data. Furthermore, we’re bleeding out cash flow that’s currently going to everyone else who is buying and selling our data under the radar, without tribes’ permission. Tribal activities, including those performed online, should belong to tribes and their peoples.

The digital frontier could also become a battlefield, and we are leaving ourselves vulnerable by refusing to exercise data sovereignty. It’s been revealed that the United States has spied on organizations like Amnesty International who support the release of political prisoner Leonard Peltier.

Tribal interests and federal interests don’t always coincide. Natives fight on the ground and online to protect water and land, going against the Keystone XL pipeline, fracking, uranium mining, and the seizure of sacred sites. Activism should not be compromised by the government or corporations who spy on them, and tribal members should be afforded protection from such invasion, especially over lands under tribal jurisdiction.

The creation and assertion of tribal policy on digital information is long overdue. Make no mistake, it doesn’t matter whether you’re Democrat or Republican, patriotic, or not. Taking control of our digital infrastructure and protecting our metadata is about asserting tribal sovereignty. We have qualified technical professionals among our membership, along with affordable means of setting up efficient digital and Wi-Fi infrastructure.

Refusal to make data sovereignty a priority will impede tribal economic development and leaves Native nationhood vulnerable to attack by public and private interests. This is one way we protect our future for the next seven generations.

Ruth Hopkins (Sisseton Wahpeton & Mdewakanton Dakota, Hunkpapa Lakota) is a writer, blogger, biologist, activist and judge.