The Tragedy of Tribal
Sovereignty
by Darrel Smith
In Medieval times (sometimes referred to as the Dark
Ages), kings were sovereign. Ordinary people were vassals or subjects. People believed
that kings had a divine right to rule their subjects. Sovereign immunity (protecting the
sovereign from being sued) protected kings, as God's governmental representatives, from
court challenges initiated by their subjects. Actually, absolute sovereign immunity was
already being reduced in England as early as 1215 by documents such as the Magna Carta.
After fighting and winning the Revolutionary War against "King
George" and the British, Americans totally reversed the concept of sovereignty.
American government is based on the concept of popular sovereignty. This concept vests
supreme political power in the will of the people. There are many common expressions of
this concept such as the state motto, "Under God, the people rule." In the
famous Gettysburg Address, Lincoln described ours as a "government of the people, by
the people, for the people." Instead of the people being subjects of the king,
governmental employees are considered "public servants." Popular sovereignty is
why our Constitution starts with the words, "We the People." The American people
as a source of American sovereignty took some of their sovereignty and gave it to the
government for necessary functions. This transfer of political power was strictly limited
by the Constitution. "We the People" also protected ourselves from governmental
abuses by balancing powers between the executive, legislative and judicial branches. We
further divided political power between federal, state (with their own divided branches)
and local governments.
In contrast, the modern concept of tribal sovereignty is an independent
sovereignty of tribal governments not a popular sovereignty of Indian people. Like
Medieval kings, tribal governments have largely unchecked, centralized power and are
generally protected from being sued. In fact, tribal governments have been given sovereign
powers that no other government in America, including the federal government, enjoys.
Where do these extraordinary powers come from? Many people will say they have been granted
by Congress, and in a sense, they are correct. Indian trust land on reservations is
considered "territory" and Article IV, Section 3 of the Constitution gives
Congress the right to "make all needful Rules and Regulations respecting the
Territory." Ultimately, however, Congress can seldom grant powers without first
taking them from someone else. Tribal governments' extraordinary sovereign powers have
been taken from the people that they govern ­ primarily from the popular
sovereignty of Indian people. It isn't surprising that American Indian citizens on
reservations live without the most basic Constitutional guarantees. As Minnesota Appeals
Court Judge R.A. (Jim) Randall has noted in a legal opinion:
"It is not known to all reading this opinion that the following
list of state and federal constitutional guarantees and rights are not in place for
Minnesota Indians domiciled on a reservation: There is no guarantee that the Minnesota
Constitution, the United States Constitution and its precious Bill of Rights will control.
There are no guarantees that the Civil Rights Act, federal or state legislation against
age discrimination, gender discrimination, etc. will be honored. There are no guarantees
of the Veteran's Preference Act, no civil classification to protect tribal government
employees, no guarantees of OSHA, no guarantees of the Americans with Disabilities Act
(1990), no guarantees of the right to unionize, no right to Minnesota's teacher tenure
laws, no right to the benefit of a federal and state "whistleblower" statutes,
no guarantees against blatant nepotism, no guarantees of a fair and orderly process
concerning access to reservation housing, and no freedom of the press and no freedom of
speech.
"In other words, all the basic human rights we take for granted,
that allow us to live in dignity with our neighbors, are not guaranteed on Indian
reservations under the present version of 'sovereignty.'"
The modern concept of tribal sovereignty involves a great transfer of political power
from Indian citizens to their largely unaccountable tribal governments.
The transfer of sovereignty from Indians to tribal governments was
imposed on reservations by the federal government starting with the Indian Reorganization
Act of 1934. This Act was promoted by John Collier, the Commissioner of Indian Affairs at
the time, as a grand social-political experiment. Collier and others expected reservations
to become "a model of community that all Americans might in some ways follow...
because he wanted Indians to offer an alternative way of living for
individualistic-oriented white America." Collier continued to demonstrate his
preference for powerful centralized government and the communal ownership of assets when
he praised an idealized version of communism in Red China in his book, From Every Zenith.
published in 1963. America's reservations have become demonstration models; demonstrating
the opposite of what Collier expected.
Not only is the transferal of sovereignty from American Indians to
tribal governments a great reversal of the most basic American concepts established during
and after the Revolutionary War, it is also a violation and reversal of the vast majority
of Indian traditions. Before being affected by White concepts of government, most Indian
societies were characterized by weak tribal governments and high levels of individual
freedom. Most Indians lived largely in autonomous bands. Individuals that were
dissatisfied with these bands were free to join another band or form a new band. Only very
rarely did most tribes act with strong centralized authority. As one chief said. "we
are a dispersed people, and have no regular system of acting together."
Confronted with this betrayal, hundreds of thousands of Indians have
done the same things their ancestors might have done. In fact, the same thing the pilgrims
did, and other people all over the world do, when confronted with tyrannical, oppressive
governments. They voted with their feet. In 1990, almost 1,960,000 people classified
themselves as Indian. Only 447,400 of them, or less than twenty-three percent, still live
on Indian reservations. They have chosen to leave their families, friends, culture, lands,
and the many federal, state, local and private benefits provided on reservations. They
have chosen a new life off the reservation. As soon as they step outside of the
reservation boundaries they have the full protection of the federal and state
constitutions and laws.
Tribal sovereignty diminishes the rights of Indian Americans,
hundreds-of-thousands of non-Indians who live on reservations, and millions of others who
are affected by tribal governments. Federal Indian policy, modern tribal governments and
the concept of tribal sovereignty violate the most basic principles of the American
Revolution and also the vast majority of early Indian traditions. We can't grant popular
sovereignty to Indian people without reducing the current exalted sovereign status of
tribal governments. Fortunately, conveying popular sovereignty to American Indians would
also return traditional concepts of Individual freedom and dignity to Indians. As Judge
Randall also noted. "[T]his country, has the power and the legal right to protect any
and all parts of Indian identity, culture, tribal assets, self-determination,
religion/spirituality that needs to be protected, and yet do it all within the framework
of treating American Indians like we treat ourselves, as normal citizens of this state, of
this country. The real issue is, do we have the will?" Granting popular sovereignty
and equal constitutional rights to reservation residents is the last truly great civil
rights struggle in this country.